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As filed with the Securities and Exchange Commission on October 6, 2017

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

FUNKO, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction of

incorporation or organization)

 

3944

(Primary Standard Industrial

Classification Code Number)

 

35-2593276

(I.R.S. Employer

Identification No.)

2802 Wetmore Avenue

Everett, Washington 98201

Telephone: (425) 783-3616

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Tracy D. Daw

Senior Vice President, General Counsel and Secretary

2802 Wetmore Avenue

Everett, Washington 98201

Telephone: (425) 783-3616

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Marc D. Jaffe, Esq.

Ian D. Schuman, Esq.

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

Telephone: (212) 906-1200

Fax: (212) 751-4864

 

John Duke, Esq.

Adam Brown, Esq.

Hogan Lovells US LLP

1735 Market Street, 23 rd Floor

Philadelphia, PA 19103

Telephone: (267) 675-4600

Fax: (267) 675-4601

 

Patrick J. Schultheis

Michael Nordtvedt

Jeana S. Kim

Wilson Sonsini Goodrich & Rosati

Professional Corporation

701 Fifth Avenue, Suite 5100

Seattle, WA 98104

Telephone: (206) 883-2500

Fax: (206) 883-2699

 

 

A PPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC : A S SOON AS PRACTICABLE AFTER THIS R EGISTRATION S TATEMENT IS DECLARED EFFECTIVE .

 

 

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer     Accelerated filer  
Non-accelerated filer     (Do not check if a smaller reporting company)   Smaller reporting company  
Emerging growth company    

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act.   

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of each class of securities to be registered  

Proposed maximum

aggregate
offering price (1)(2)

  Amount of registration fee

Class A common Stock, $0.0001 par value per share

  $100,000,000   $12,450

 

 

(1)   Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(2)   Includes the offering price of shares of Class A common stock that may be sold if the option to purchase additional shares of Class A common stock granted by the Registrant to the underwriters is exercised.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


Table of Contents

The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to Completion. Dated October 6, 2017.

 

 

LOGO

             Shares

Funko, Inc.

Class A Common Stock

 

 

This is an initial public offering of shares of Class A common stock of Funko, Inc. We are selling              shares of Class A common stock. The selling stockholders identified in this prospectus are offering an additional              shares of our Class A common stock.

Prior to this offering, there has been no public market for the Class A common stock. It is currently estimated that the initial public offering price per share of Class A common stock will be between $             and $            . We have applied to list our Class A common stock on the Nasdaq Global Select Market under the symbol “FNKO.”

We will have two classes of common stock outstanding after this offering: Class A common stock and Class B common stock. Each share of our Class A common stock and Class B common stock entitles its holders to one vote per share on all matters presented to our stockholders generally. All shares of our Class B common stock will be held by the Continuing Equity Owners (as defined below).

We will be a holding company, and upon consummation of this offering and the application of proceeds therefrom, our principal asset will consist of the common units of Funko Acquisition Holdings, L.L.C., or FAH, LLC, that we purchase directly from FAH, LLC and certain of the Continuing Equity Owners (as defined below) with the proceeds from this offering and the common units of FAH, LLC that we acquire from the Former Equity Owners (as defined below) in connection with the consummation of the Transactions (as defined below), collectively representing an aggregate     % economic interest in FAH, LLC. The remaining     % economic interest in FAH, LLC will be owned by the Continuing Equity Owners through their ownership of common units of FAH, LLC.

We will be the sole managing member of FAH, LLC. We will operate and control all of the business and affairs of FAH, LLC and, through FAH, LLC and its subsidiaries, conduct our business.

Following this offering, we will be a “controlled company” within the meaning of the Nasdaq rules (as defined below). See “Our Organizational Structure” and “Management—Controlled Company Exception.”

We are an “emerging growth company,” as defined in Section 2(a) of the Securities Act of 1933, as amended, and will be subject to reduced public reporting requirements. This prospectus complies with the requirements that apply to an issuer that is an emerging growth company.

 

 

See “ Risk Factors ” beginning on page 28 to read about factors you should consider before buying shares of our Class A common stock.

 

 

Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

 

 

 

     Per Share      Total  

Initial public offering price

   $                   $                   

Underwriting discounts and commissions (1)

   $      $  

Proceeds, before expenses, to Funko, Inc.

   $      $  

Proceeds, before expenses, to the selling stockholders

   $      $  

 

(1)   We have agreed to reimburse the underwriters for certain expenses in connection with this offering. See “Underwriting.”

To the extent that the underwriters sell more than              shares of Class A common stock, the underwriters have the option to purchase up to an additional              shares from us and the selling stockholders at the initial price to public less the underwriting discount.

 

 

The underwriters expect to deliver the shares of Class A Common stock against payment in New York, New York on                     , 2017.

 

Goldman Sachs & Co. LLC    J.P. Morgan        BofA Merrill Lynch

 

Piper Jaffray    Jefferies

 

Stifel        BMO Capital Markets    SunTrust Robinson Humphrey

 

 

Prospectus dated                 , 2017.


Table of Contents

TABLE OF CONTENTS

 

     Page  

BASIS OF PRESENTATION

     ii  

TRADEMARKS

     v  

MARKET AND INDUSTRY DATA

     v  

PROSPECTUS SUMMARY

     1  

RISK FACTORS

     28  

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

     66  

OUR ORGANIZATIONAL STRUCTURE

     69  

USE OF PROCEEDS

     74  

CAPITALIZATION

     76  

DIVIDEND POLICY

     78  

DILUTION

     79  

SELECTED HISTORICAL AND UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL AND OTHER DATA

     83  

UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION

     88  

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     100  

BUSINESS

     125  

MANAGEMENT

     146  

EXECUTIVE COMPENSATION

     153  

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     167  

PRINCIPAL AND SELLING STOCKHOLDERS

     183  

DESCRIPTION OF CAPITAL STOCK

     186  

DESCRIPTION OF CERTAIN INDEBTEDNESS

     193  

SHARES ELIGIBLE FOR FUTURE SALE

     198  

MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF CLASS A COMMON STOCK

     201  

UNDERWRITING

     205  

LEGAL MATTERS

     212  

EXPERTS

     212  

WHERE YOU CAN FIND MORE INFORMATION

     212  

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

     F-1  

 

 

We, the selling stockholders and the underwriters have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any related free writing prospectuses. We, the selling stockholders and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the shares offered by this prospectus, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus is current only as of its date. Our business, financial condition, results of operations and prospectus may have changed since that date.

For investors outside the United States: We and the selling stockholders have not, and the underwriters have not, done anything that would permit this offering or the possession or distribution of this prospectus or any free writing prospectus we may provide to you in connection with this offering in any jurisdiction where action for purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of Class A common stock and the distribution of this prospectus outside the United States. See “Underwriting.”

 

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BASIS OF PRESENTATION

Organizational Structure

In connection with the closing of this offering, we will effect certain organizational transactions. Unless otherwise stated or the context otherwise requires, all information in this prospectus reflects the consummation of the organizational transactions and this offering, which we refer to collectively as the Transactions. See “Our Organizational Structure” for a description of the Transactions and a diagram depicting our organizational structure after giving effect to the Transactions, including this offering.

As used in this prospectus, unless the context otherwise requires, references to:

 

    “we,” “us,” “our,” the “Company,” “Funko” and similar references refer: (1) following the consummation of the Transactions, including this offering, to Funko, Inc., and, unless otherwise stated, all of its subsidiaries, including FAH, LLC and, unless otherwise stated, all of its subsidiaries, and (2) prior to the completion of the Transactions, including this offering, to FAH, LLC and, unless otherwise stated, all of its subsidiaries.

 

    “ACON” refers to ACON Funko Investors, L.L.C., a Delaware limited liability company, and certain funds affiliated with ACON Funko Investors, L.L.C. (including any such fund or entity formed to hold shares of Class A common stock for the Former Equity Owners).

 

    “Continuing Equity Owners” refers collectively to ACON, Fundamental, the Former Profits Interests Holders, the Warrant Holders and certain current and former executive officers, employees and directors and each of their permitted transferees that will own common units in FAH, LLC after the Transactions and who may, following the consummation of this offering, redeem at each of their options (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from the Home Run Units previously granted pursuant to the existing limited liability company agreement of FAH, LLC (the “HR Units”)) their common units for, at our election, cash or newly-issued shares of our Class A common stock as described in “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering.”

 

    “FAH LLC Agreement” refers to FAH, LLC’s second amended and restated limited liability company agreement, which will become effective on or prior to the consummation of this offering.

 

    FHL ” refers to Funko Holdings LLC, a Delaware limited liability company.

 

    “Former Equity Owners” refers to those Original Equity Owners affiliated with ACON who will transfer their indirect ownership interests in common units of FAH, LLC for shares of our Class A common stock (to be held by them either directly or indirectly) in connection with the consummation of the Transactions.

 

    “Former Profits Interests Holders” refers collectively to certain of our directors and certain current executive officers and employees, in each case, who hold existing vested and unvested profits interests in FAH, LLC pursuant to FAH, LLC’s existing equity incentive plan and who will receive common units of FAH, LLC in exchange for their profits interests (subject to any common units received in exchange for unvested profits interests remaining subject to their existing time-based vesting requirements) in connection with the Transactions.

 

    Fundamental ” refers collectively to Fundamental Capital, LLC and Funko International, LLC.

 

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    “Original Equity Owners” refers to the owners of ownership interests in FAH, LLC, collectively, prior to the Transactions, which include ACON, Fundamental, the Former Profits Interests Holders and certain current and former executive officers, employees and directors.

 

    “Warrant Holders” refers to lenders under our Senior Secured Credit Facilities that currently hold warrants to purchase ownership interests in FAH, LLC, which will be converted into common units of FAH, LLC in connection with the consummation of the Transactions.

We will be a holding company and the sole managing member of FAH, LLC, and upon consummation of this offering and the application of proceeds therefrom, our principal asset will consist of common units of FAH, LLC.

Presentation of Financial Information

FAH, LLC is the predecessor of the issuer, Funko, Inc., for financial reporting purposes. Funko, Inc. will be the audited financial reporting entity following this offering. Accordingly, this prospectus contains the following historical financial statements:

 

    Funko, Inc. Other than the inception balance sheet, dated as of April 21, 2017, and the unaudited balance sheet, dated as of June 30, 2017, the historical financial information of Funko, Inc. has not been included in this prospectus as it is a newly incorporated entity, has no business transactions or activities to date and had no assets or liabilities during the periods presented in this prospectus.

 

    FAH, LLC. As we will have no interest in any operations other than those of FAH, LLC and its subsidiaries, the historical consolidated financial information included in this prospectus is that of FAH, LLC and its subsidiaries.

On October 30, 2015, ACON, through FAH, LLC, an entity formed in contemplation of the transaction, acquired a controlling interest in FHL and its subsidiary, Funko, LLC. We refer to this transaction as the “ACON Acquisition.” As a result of the ACON Acquisition, information throughout this prospectus presents operations and cash flows for two periods, Predecessor and Successor, which relate to the period preceding the ACON Acquisition on October 30, 2015 and the period succeeding the ACON Acquisition, respectively. References to the “Successor 2015 Period” refer to the period from October 31, 2015 through December 31, 2015 and references to the “Predecessor 2015 Period” refer to the period from January 1, 2015 through October 30, 2015. Financial information in the Predecessor 2015 Period principally relates to FHL and its subsidiary Funko, LLC. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for more information.

Our presentation of certain financial information for the combined year ended December 31, 2015, specifically net sales and Adjusted EBITDA, represents the mathematical addition of the Predecessor 2015 Period and the Successor 2015 Period. The change in basis resulting from the ACON Acquisition did not materially impact such financial information and, although this presentation of financial information on a combined basis does not comply with U.S. generally accepted accounting principles, or GAAP, or with the pro forma requirements of Article 11 of Regulation S-X, we believe it provides a meaningful method of comparison to the other periods presented in this prospectus. The data is being presented for analytical purposes only. Combined operating results (1) may not reflect the actual results we would have achieved absent the ACON Acquisition, (2) may not be predictive of future results of operations and (3) should not be viewed as a substitute for the results of the Predecessor and the Successor presented in accordance with GAAP.

The unaudited pro forma financial information of Funko, Inc. presented in this prospectus has been derived by the application of pro forma adjustments to the historical consolidated financial

 

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statements of FAH, LLC and its subsidiaries included elsewhere in this prospectus. These pro forma adjustments give effect to the Transactions as described in “Our Organizational Structure,” including the consummation of this offering, as if all such transactions had occurred on January 1, 2016, in the case of the unaudited pro forma consolidated statements of operations data, and as of June 30, 2017 in the case of the unaudited pro forma consolidated balance sheets. See “Unaudited Pro Forma Consolidated Financial Information” for a complete description of the adjustments and assumptions underlying the pro forma financial information included in this prospectus.

Certain monetary amounts, percentages and other figures included in this prospectus have been subject to rounding adjustments. Percentage amounts included in this prospectus have not in all cases been calculated on the basis of such rounded figures, but on the basis of such amounts prior to rounding. For this reason, percentage amounts in this prospectus may vary from those obtained by performing the same calculations using the figures in our consolidated financial statements included elsewhere in this prospectus. Certain other amounts that appear in this prospectus may not sum due to rounding.

 

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TRADEMARKS

This prospectus includes our trademarks and trade names, including Pop! ® , Mystery Minis ® , Dorbz ® , Pint Size Heroes™, Rock Candy ® , Galactic Plushies , Hero Plushies , SuperCute and MyMoji ® , which are protected under applicable intellectual property laws and are our property. This prospectus also contains trademarks, trade names and service marks of other companies, which are the property of their respective owners. Solely for convenience, trademarks, trade names and service marks referred to in this prospectus may appear without the ® , ™ or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent permitted under applicable law, our rights or the right of the applicable licensor to these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks, trade names or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement or sponsorship of us by, these other parties.

MARKET AND INDUSTRY DATA

Unless otherwise indicated, information contained in this prospectus concerning our industry, competitive position and the markets in which we operate is based on information from independent industry and research organizations, other third-party sources and management estimates. Management estimates are derived from publicly available information released by independent industry analysts and other third-party sources, as well as data from our internal research, and are based on assumptions made by us upon reviewing such data, and our experience in, and knowledge of, such industry and markets, which we believe to be reasonable. In addition, projections, assumptions and estimates of the future performance of the industry in which we operate and our future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.” These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.

 

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PROSPECTUS SUMMARY

This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all of the information that you should consider before deciding to invest in our Class A common stock. You should read the entire prospectus carefully, including the “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and the related notes included elsewhere in this prospectus, before making an investment decision. Some of the statements in this prospectus constitute forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements.”

Funko: At the Nexus of Pop Culture

We are a leading pop culture consumer products company. Our business is built on the principle that almost everyone is a fan of something and the evolution of pop culture is leading to increasing opportunities for fan loyalty. We create whimsical, fun and unique products that enable fans to express their affinity for their favorite “something”—whether it is a movie, TV show, video game, musician or sports team. We infuse our distinct designs and aesthetic sensibility into one of the industry’s largest portfolios of licensed content over a wide variety of product categories, including figures, plush, accessories, apparel and homewares. With our unique style, expertise in pop culture, broad product distribution and highly accessible price points, we have developed a passionate following for our products that has underpinned our growth. We believe we sit at the nexus of pop culture—content providers value us for our broad network of retail customers, retailers value us for our broad portfolio of licensed pop culture products and pop culture insights, and consumers value us for our distinct, stylized products and the content they represent. We believe our innovative product design and market positioning have disrupted the licensed product markets and helped to define today’s pop culture products category.

Pop culture pervades modern life and almost everyone is a fan of something. In the past, pop culture fandom was often associated with stereotypical images of fans from narrow demographics, such as Star Trek fans attending conventions to speak Klingon to each other or friends getting together to play Dungeons & Dragons. Today, more quality content is available and technology innovation has made content accessible anytime, anywhere. As a result, the breadth and depth of pop culture fandom resembles, and in many cases exceeds, the type of fandom previously associated only with sports. Everyday interactions at home, work or with friends are increasingly influenced by pop culture.

You may have experienced pop culture through:

 

    gathering with friends at the office to talk about the latest episode of Game of Thrones…or hiding from them because you haven’t watched it yet;

 

    waiting in line for the midnight showing of the latest Star Wars movie release;

 

    binge watching an entire season of Stranger Things on Netflix with your family;

 

    experiencing Coachella via social media;

 

    watching Bugs Bunny with your children on Saturday morning;

 

    debating with your friends whether the Hunger Games books or movies are better;

 

    attending a Frozen-themed birthday party; or

 

    wearing your favorite quarterback’s jersey.

 



 

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We have invested strategically in our relationships with key constituents in pop culture. Content providers value us for our broad network of retail customers and retailers value us for our broad portfolio of licensed pop culture products, pop culture insights and ability to drive consumer traffic. Consumers, who value us for our distinct, stylized products, remain at the center of everything we do.

 

LOGO

 

    Content Providers :    We have strong licensing relationships with many established content providers, such as Disney, HBO, LucasFilm, Marvel, the National Football League and Warner Brothers. We strive to license every pop culture property that we believe is relevant to consumers. We currently have licensed over 1,000 properties, which we believe represents one of the largest portfolios in our industry, and from which we can create multiple products based on each character within those properties. Content providers trust us to create unique, stylized extensions of their intellectual property that extend the relevance of their content with consumers through ongoing engagement, helping to maximize the lifetime value of their content. We believe we have benefited from a trend of content providers consolidating their relationships to do more business with fewer licensees. Our track record of obtaining licenses from content providers, together with our proven ability to renew and extend the scope of our licenses, demonstrates the trust content providers place in us.

 

   

Retail Channels :     We sell our products through a diverse network of retail customers across multiple retail channels, including specialty retailers, mass-market retailers and e-commerce sites. We can provide our retail customers a customized product mix designed to appeal to their particular customer bases. Our current retail customers include Amazon, Barnes & Noble, Entertainment Earth, GameStop, Hot Topic, Target and Walmart in the United States, and Smyths Toys and Tesco internationally. In 2016, we sold our products through over 2,000 U.S. retailers, who collectively have over 25,000 total doors, and through distributors internationally, which represented 18.8% of 2016 net sales. Retailers recognize the opportunity presented by the demand for pop culture products and are continuing to dedicate additional shelf space to our products and the pop culture category. For example, based on public filings, GameStop, a specialty video game retailer, generated $494 million in 2016 net sales from its collectibles business, an increase of 60% compared to 2015. Additionally, some of our retail customers, such as Target and Walmart, view us as pop culture experts, and we help them manage their pop culture category. We believe we drive meaningful traffic to our retail customers’ stores because our products have their own built-in fan base, are refreshed regularly creating a

 



 

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“treasure hunt” shopping experience for consumers, and are often supplemented with exclusive, limited-time products that are highlighted on social media. We believe these merchandising strategies create a sense of urgency with consumers that encourages repeat visits to our retail customers.

 

    Consumers :    Fans are increasingly looking for ways to express their affinity for and engage with their favorite pop culture content. Over time, many of our consumers evolve from occasional buyers to more frequent purchasers, whom we categorize as enthusiasts or collectors. We estimate that enthusiasts, who are more engaged in pop culture, and collectors, who regularly purchase our products and self-identify as collectors, each make up approximately one-third of our customers. We create products to appeal to a broad array of fans across consumer demographic groups—men, women, boys and girls—not a single, narrow demographic. We currently offer over 5,000 products across our product categories. Our products are generally priced under $10, which allows our diverse consumer base to express their fandom frequently and impulsively. We continue to introduce innovative products designed to facilitate fan engagement at different price points and styles. In addition, our fans routinely express their passion for our products and brands through social media and live pop culture events, such as Comic-Con or Star Wars Celebration.

We have developed a nimble and low-fixed cost production model. The strength of our in-house creative team and relationships with content providers, retailers and third-party manufacturers allows us to move from product concept to pre-selling a new product in as few as 24 hours. We typically have a new figure on the store shelf between 110 and 200 days and can have it on the shelf in as few as 70 days. As a result, we can dynamically manage our business to balance current content releases and pop culture trends with content based on classic evergreen properties, such as Mickey Mouse or classic Batman. This has allowed us to deliver significant growth while lessening our dependence on individual content releases.

Our financial performance reflects the strong growth of our business. From 2014 to 2016, we expanded our net sales, net income and Adjusted EBITDA at a 100%, a 17% and an 86% compound annual growth rate, or CAGR, respectively. We achieved this growth without reliance on a singular “hit” property as no single property accounted for more than 15% of annual net sales during that period. We believe our strong growth and profitability reflect our pop culture consumer products leadership.

 

 

LOGO

 



 

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The following table sets forth net income (loss) and Adjusted EBITDA as a percentage of net sales.

 

     Years Ended December 31,  
         2014          Predecessor
    2015    
     Successor
    2015    
         2016      

Net income (loss)

     18%        13%        (28)%        6%  

Adjusted EBITDA

     26%        29%        23%        23%  

Adjusted EBITDA is a non-GAAP financial measure. For a reconciliation of Adjusted EBITDA to net income, the most directly comparable GAAP financial performance measure, see “—Summary Historical and Pro Forma Consolidated Financial and Other Data.”

The Pop Culture Industry: The Forces at Work

Pop culture encompasses virtually everything that someone can be a fan of—movies, TV shows, video games, music and sports. The global licensed pop culture product industry in which we compete sits within the global licensed entertainment and character products market, which had $113 billion in total sales in 2016. We believe that many retailers have seen traffic decline across traditional consumer categories. In contrast, demand for pop culture content, consumer products and experiences has grown rapidly. We believe the increasing influence of pop culture and the strength of the pop culture industry is evidenced by:

 

    60 movie franchises each grossing more than $1 billion worldwide, and the average number of franchise films included in the top ten annual grossing movies from 2000 through 2015 was 6.6 films, up from 2.5 franchise films in the 1990s;

 

    3.2 million total interactions across both Facebook and Twitter about each new episode of The Walking Dead in 2016;

 

    47% increase in live concert ticket sales in North America from 1996 to 2015; and

 

    43 million viewers watching the League of Legends championship in 2016, a number that is 1.4 times that of the viewership of the NBA Finals that year, and an increase of 19% from 2015.

 



 

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The pop culture industry is being driven by several major forces. Technology advances have made it easier to access, consume and engage with content. Content providers have produced more quality content to drive fan engagement, often with a focus on franchise properties. Dedicated, active and enduring fan bases have emerged across the pop culture landscape. These fans seek out opportunities to interact with their favorite content and with like-minded fans through social media and content-centric experiences. At the same time, social norms have shifted, making fandom culturally accepted and mainstream. These trends reinforce one another leading to a substantial increase in pop culture fandom and to significant growth in the industry.

The Forces At Work In The Pop Culture Industry

 

 

LOGO

Technology Innovation

The proliferation of powerful mobile technology, such as tablets and smartphones, and the emergence of new content distribution services, such as Amazon Prime, Hulu and Netflix, have enabled fans to connect and engage with content anywhere, at any time, in larger “binge” quantities. More content and greater access have led to more fans spending more time per day consuming content. In addition, fans are able to develop a deeper affinity for content due to the increased prevalence of platforms and events where they can share their passion with other fans (such as through social media, blogs, YouTube, podcasts and online games). The accelerated pace of content discovery and sharing has created an environment where niche content can quickly become mainstream, resulting in more content becoming part of pop culture.

Evolution of Content

Content providers have increasingly focused on creating original scripted and franchise content that has broad global appeal and potential for sequels and brand extensions. During the 1990s, the top ten annual grossing movies included an average of 2.5 franchise films and from 2000 through 2015, the top ten annual grossing movies included an average of 6.6 franchise films. The growth of a healthy franchise ecosystem across content types has fostered fan loyalty and stimulated licensed product purchases. In addition, there has been a virtuous content-led cycle, which has driven an increase in the production of scripted high-budget, high-quality original TV shows, such as The Sopranos and Game of

 



 

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Thrones. The number of scripted original series more than doubled from 216 in 2010 to 455 in 2016, with newer entrants such as Amazon Prime, Hulu and Netflix spending or announcing the intention to spend substantial capital on new original content. For example, based on public filings, Netflix plans to invest approximately $6 billion in content creation in 2017.

Dedicated and Active Fan Base

We believe pop culture fans possess distinguishing characteristics that make them highly valuable consumers. Like sports fans, fans of other forms of pop culture identify strongly with their favored properties, and have a natural tendency to form social communities around them. For context, in 2016, retail sales of licensed entertainment and character products totaled $113 billion, compared to $25 billion for retail sales of licensed sports products. Furthermore, as it becomes increasingly easy to access a large quantity of quality content, fans seek more ways to expand and express connectivity to their favored characters or properties as they share their passion with others. As a result, consumers are participating in the story of these properties via social media platforms and conventions, such as Comic-Con, AnimeExpo and Star Wars Celebration, rather than being solely consumers of content. By being a part of the conversation regarding their favored content, fans reinforce their love for it, thereby creating a cycle of fandom.

Growing Cultural Relevance and Acceptance

As pop culture engagement has increased, we believe it has become more culturally acceptable to be openly passionate about all forms of pop culture, not just sports. Social media is driving the importance of pop culture as fans increasingly want to engage with the content and their social communities to show affinity for pop culture content. The top five U.S. media conventions, including Comic-Con International: San Diego and New York Comic Con, drew over a half million attendees in 2015, representing a sharp increase of over 40% from 2010. This growth was driven in part by an increase in female attendees, who accounted for 45% of all convention attendees in 2014. This represents a long-term cultural shift supporting the acceptability of fan affinity for pop culture content across multiple demographic categories of fans, and the growth beyond the traditional narrow, male-dominated demographic.

Our Strategic Differentiation

Leading Design and Creative Capabilities

Our in-house creative team layers our own whimsical, fun and distinct stylization onto content providers’ characters, creating unique products for which there is substantial consumer demand. Our creative team is passionate about pop culture. We enjoy a strong pipeline of talent for our creative team given our culture and the opportunity we provide to work with the most relevant pop culture content. We believe content providers trust us with their properties, and consumers passionately engage with our products and brands because of our creativity. In addition, we reinvigorate classic evergreen or back catalog content by infusing a fresh, unique aesthetic and design into characters that enjoy enduring passion and nostalgia from fans. As a result of our creative capabilities and broad portfolio of licenses, we create a substantial number of new products each year, including approximately 2,300 new products in 2016.

Diversity of Products and Accessible Price Points Create Broad Appeal

We create products to appeal to a broad array of fans across consumer demographic groups. We do not limit ourselves by targeting discrete demographics such as the stereotypical collector or the

 



 

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child seeking the latest (and often short-lived) toy craze. We estimate based on market and internal data that occasional buyers, which we define as those consumers who are mainstream movie and TV fans, but do not self-identify as enthusiasts, and enthusiasts, who are more engaged in pop culture than occasional buyers but who do not self-identify as collectors, each make up approximately one-third of our customers. Our products’ price points are generally under $10, which allows our diverse consumer base to express their fandom frequently and impulsively. We have broadened our products beyond our historical focus on figures (down to approximately 82% of 2016 net sales from 91% of 2015 net sales), having successfully launched new and growing categories such as plush (approximately 6% of 2016 net sales) and accessories (approximately 5% of 2016 net sales). We believe we have one of the largest and most engaged fan bases in our industry, driven by their passion and love of our unique products and the properties we represent.

Trusted Steward of the Most Important Pop Culture Content

We strive to license every pop culture property that we believe is relevant to our consumers. Over the last decade, we have built strong relationships with content providers and currently have a catalog of content licenses covering over 1,000 properties that we believe is one of the industry’s largest. We believe there is a trend of content providers consolidating their relationships to do more business with fewer licensees. As a trusted steward with a strong retail distribution network, we believe we have benefited from this trend. We often work collaboratively with content providers in advance of new content releases to create unique, stylized products to maximize the value of their properties. In some cases, the input we have provided has influenced the content provider’s creative choices for its original content. We have licenses for all of the 15 highest grossing movie franchises in history. We believe we are well positioned to continue to obtain licenses for new important movie franchises and other properties. Further, we have historically been able to renew productive licenses on commercially reasonable terms, which positions us to benefit from the ongoing desire of consumers to engage with and show affinity for their favorite pop culture content.

Deep, Mutually Beneficial Relationships with a Broad Network of Retail Customers

We partner with a diverse group of retail customers through which we sell our products. Many of our retail customers view us as experts in pop culture and in some cases we help manage their growing pop culture category within their stores and can provide a curated experience by catering to their particular customer bases. We believe this enables us to enhance the productivity of the pop culture category for our retail customers, resulting in increased sales and expanded shelf space for our products—a major driver of our growth historically. Additionally, we believe our pop culture expertise and omnichannel sales model position us well to capture the industry shift from traditional brick and mortar to channel-agnostic content consumerism. In addition, we often release exclusive new products with a specific retail customer, driving significant traffic and sales for them.

Nimble Speed to Market Reflects “Fast Fashion” Product Development Process

Speed to market has become increasingly important as technological innovation has accelerated the pace of content discovery and sharing and the speed at which niche content can become mainstream. Our flexible and low-fixed cost production model enables us to go from product design of a figure to the store shelf between 110 and 200 days and can have it on the shelf in as few as 70 days, with a minimal upfront investment for most figures of $5,000 to $7,500 in tooling, molds and internal design costs. Because of the strength of our in-house creative team, we are able to move from product design to pre-selling a new product in as few as 24 hours. This ability, coupled with the valuable data insights we have developed over the past decade, and the increasing use of repeated franchise properties by content providers, reduces potential product risk to us while better positioning us to

 



 

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benefit from trends in content creation and consumption. As an example of our “fast fashion” product development process, we announced and were able to pre-sell a dancing Baby Groot figure, which was a surprise character in Marvel’s 2014 Guardians of the Galaxy movie release, within a week of the movie release.

Dynamic Business Model Drives Revenue Visibility and Growth

Our business is diversified across content providers and properties, product categories, and sales channels. As a result, we can dynamically manage our business to capitalize on pop culture trends, which has allowed us to deliver significant growth while lessening our dependence on individual content releases. Our content provider relationships are highly diversified. We generated only approximately 8% and 15% of net sales from our top property for the six months ended June 30, 2017 and the year ended December 31, 2016, respectively, and the portion of our net sales for the six months ended June 30, 2017 and the year ended December 31, 2016 attributable to our top five properties was 27% and 36%, respectively. Our products are balanced across our licensed property categories. In 2016, we generated approximately 43% of net sales from classic evergreen properties, approximately 24% from movie release properties, approximately 20% from current video game properties and approximately 12% from current TV properties. We have visibility into the new release schedule of our content providers and our expansive license portfolio allows us to dynamically manage new product creation. This allows us to adjust the mix of products based on classic evergreen properties and new releases, depending on the media release cycle. In addition, we sell our products worldwide through a diverse group of sales channels, including specialty retailers, distributors, mass-market retailers, e-commerce sites and direct-to-consumer.

Visionary Management Team and Employees with Genuine Passion for Pop Culture

Our highly experienced management team is led by Brian Mariotti, an industry pioneer. A long-time pop culture fan, Brian recognized early on the impact that trends in media and entertainment would have on the pop culture industry and the value of having a diverse portfolio of licenses. Passion for pop culture pervades our company and our openness to new ideas from anywhere in the organization has resulted in some of our most innovative and differentiated products.

How We Plan To Grow

We are pursuing the following strategies that we believe will drive substantial future growth.

Increase Sales with Existing Retail Customers

We intend to continue to increase our sales by expanding our shelf space and deepening our relationships with our retail customers. Our products have driven traffic to our retail customers’ previously less productive square footage, which has resulted in increased shelf space for our products. In addition to designing unique, stylized products that resonate with pop culture fans and drive traffic, we intend to increase the number of retail customers for whom we curate pop culture selections. We believe doing so deepens our relationships with our retail customers and encourages them to allocate more shelf space to our products and pop culture products generally and, in some cases, create pop culture departments where none existed before, which we believe will drive additional brand awareness and sales growth. We are also in the process of creating a self-service online portal for our retail customers to reduce ordering time and increase the efficiency of our ordering process, which we believe will increase our sales with our existing retail customers.

Add New Retail Customers and Expand Into New Channels

We regularly evaluate and add new retail customers as we believe consumers demand Funko products regardless of the retail channel through which they purchase them. While we believe we have

 



 

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opportunities to add new specialty and mass-market retailers, we also plan to selectively target new or underdeveloped sales channels, such as dollar, drug, grocery and convenience stores. By adding new retail customers, we will increase the awareness and availability of our products to consumers, which we believe will increase sales. We also intend to increase our direct-to-consumer efforts, which represented approximately 6% of 2016 net sales.

Broaden Our Product Offerings

In addition to designing products to address new content that licensors continually produce, we plan to add new product categories, lines and brands to leverage our existing sales channels to continue to drive sales. For example, we are expanding our blind box offerings, which have historically included figures, to plush products. We also continually evaluate product innovations and potential acquisition targets to complement our existing product categories, lines and brands. In June 2017, we completed the acquisition of Loungefly, LLC, a designer of a variety of licensed pop culture fashion handbags, small leather goods and accessories, to expand and diversify our product offerings in our accessories category. Adding new product categories, lines and brands will enable us to leverage our existing retail distribution network to quickly increase sales while offering a more fulsome pop culture product offering to our retail customers and consumers.

Expand Internationally

We believe that the forces at work first observed in the U.S. pop culture industry are global. We believe we are currently underpenetrated internationally, as approximately 28.6% and 18.8% of net sales for the six months ended June 30, 2017 and the year ended December 31, 2016, respectively, were generated outside of the United States, and we believe that international sales represent a significant growth opportunity. In contrast to our international sales, approximately 75% of global box office receipts in 2016 were generated outside of the United States, suggesting significant potential for international growth. We are investing in the growth of our international business both organically and through third party distributors. In January 2017, we acquired certain assets of Underground Toys Limited and now sell directly to certain of our customers in Europe, the Middle East and Africa through our newly formed subsidiary, Funko UK, Ltd. In the future we may pursue similar acquisitions, or expand our direct sales force or distributor relationships to further penetrate Asia Pacific, Latin America or other regions.

Leverage the Funko Brand Across Multiple Channels

We believe there is a significant opportunity to leverage our distinctive style and designs across numerous underserved channels such as digital content, as well as potentially movies and television. For example, we are in the process of creating an online portal for Funko that will serve as an online destination for our consumers. This online community will allow consumers to create personal avatars, purchase digital products and interact with other consumers. We believe this opportunity will drive brand awareness with new audience segments, deepen consumer engagement to drive customer lifetime value, strengthen our direct connection with our consumers and grow our direct-to-consumer business, as well as support our retail customers.

 



 

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Summary Risk Factors

Participating in this offering involves substantial risk. Our ability to execute our strategy is also subject to certain risks. The risks described under the heading “Risk Factors” included elsewhere in this prospectus may cause us not to realize the full benefits of our strengths or may cause us to be unable to successfully execute all or part of our strategy. Some of the most significant challenges and risks include the following:

 

    our success depends on our ability to execute our business strategy;

 

    our business is dependent upon our license agreements, which involve certain risks;

 

    we may not be able to design and develop products that will be popular with consumers or maintain the popularity of successful products;

 

    changes or downturns in the retail industry and markets for consumer products could negatively impact our business, financial condition and results of operations;

 

    our business depends on our ability to maintain and develop relationships with retail customers and distributors;

 

    our industry is highly competitive and barriers to entry are low;

 

    our financial performance may suffer if we fail to manage our growth effectively;

 

    our gross margin may not be sustainable and may fluctuate over time;

 

    our business depends on content development and creation by third parties;

 

    our success depends on our ability to successfully manage our inventories;

 

    we or our licensors may be unable to obtain, maintain and protect our respective intellectual property rights, which could negatively impact our competitive position;

 

    our success is critically dependent on the efforts and dedication of our officers and other employees;

 

    our use of third-party manufacturers to produce our products presents risks to our business;

 

    we are subject to various government regulations, violation of which could subject us to sanctions or otherwise harm our business;

 

    our indebtedness could adversely affect our financial health and competitive position;

 

    ACON will have significant influence over us, including over decisions that require the approval of stockholders, and its interests, along with the interests of our other Continuing Equity Owners, may conflict with yours;

 

    we are a “controlled company” within the meaning of the listing rules of The Nasdaq Stock Market LLC, or the Nasdaq rules, and, as a result, will qualify for, and intend to rely on, exemptions from certain corporate governance requirements;

 

    we may not be able to realize any tax benefits that may arise from our organizational structure and any redemptions or exchanges of common units of FAH, LLC for cash or stock, including in connection with this offering; and

 

    we will incur increased costs and obligations as a result of being a public company.

Before you invest in our Class A common stock, you should carefully consider all the information in this prospectus, including matters set forth under the heading “Risk Factors.”

 



 

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Summary of the Transactions

Funko, Inc., a Delaware corporation, was formed on April 21, 2017 to serve as the issuer of the Class A common stock offered hereby. Prior to this offering, all of our business operations have been conducted through FAH, LLC and its subsidiaries. We will consummate the following organizational transactions in connection with this offering:

 

    we will amend and restate the existing limited liability company agreement of FAH, LLC to, among other things, (1) convert all existing ownership interests (including vested profits interests and all unvested profits interests (subject to          common units received in exchange for unvested profits interests remaining subject to their existing time-based vesting requirements)) in FAH, LLC into          common units of FAH, LLC, and (2) appoint Funko, Inc. as the sole managing member of FAH, LLC upon its acquisition of common units in connection with this offering;

 

    we will amend and restate Funko, Inc.’s certificate of incorporation to, among other things, provide (1) for Class A common stock, with each share of our Class A common stock entitling its holders to one vote per share on all matters presented to our stockholders generally and (2) for Class B common stock, with each share of our Class B common stock entitling its holders to one vote per share on all matters presented to our stockholders generally, and that shares of our Class B common stock may only be held by the Continuing Equity Owners and their permitted transferees as described in “Description of Capital Stock—Common Stock—Class B Common Stock;”

 

    we will issue              shares of our Class A common stock to the purchasers in this offering (or              shares if the underwriters exercise in full their option to purchase additional shares of Class A common stock) in exchange for net proceeds of approximately $         million (or approximately $          million if the underwriters exercise in full their option to purchase additional shares of Class A common stock) based upon an assumed initial public offering price of $         per share (which is the midpoint of the price range set forth on the cover page of this prospectus);

 

    we will use all of the net proceeds from this offering to purchase (1)              newly issued common units (or          common units if the underwriters exercise in full their option to purchase additional shares of Class A common stock) directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions, and (2)         common units directly from certain of the Continuing Equity Owners at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions, which combined represents     % of FAH, LLC’s outstanding common units following this offering (or     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

    FAH, LLC intends to use the net proceeds from the sale of common units to Funko, Inc. to repay the Subordinated Promissory Notes, repay a portion of the outstanding borrowings under our Senior Secured Credit Facilities (as defined herein) and, if any remain, for general corporate purposes as described under “Use of Proceeds;”

 

    existing options to purchase certain ownership interests in FAH, LLC will be converted into          options to purchase common units in FAH, LLC;

 

    existing warrants to purchase ownership interests in FAH, LLC held by the Warrant Holders will be converted into              common units of FAH, LLC;

 



 

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    the Former Equity Owners will exchange their indirect ownership interests in FAH, LLC for              shares of Class A common stock on a one-to-one basis;

 

    the Former Equity Owners will sell              shares of our Class A common stock in this offering as selling stockholders; and

 

    Funko, Inc. will enter into (1) a stockholders agreement, which we refer to as the Stockholders Agreement, with ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, (2) a registration rights agreement, which we refer to as the Registration Rights Agreement, with certain of the Original Equity Owners (including each of our executive officers) and (3) a tax receivable agreement, which we refer to as the Tax Receivable Agreement, with FAH, LLC and each of the Continuing Equity Owners. For a description of the terms of the Stockholders Agreement, the Registration Rights Agreement and the Tax Receivable Agreement, see “Certain Relationships and Related Party Transactions.”

We collectively refer to the foregoing organizational transactions as the Transactions.

Immediately following the consummation of the Transactions (including this offering):

 

    Funko, Inc. will be a holding company and its principal asset will consist of common units it purchases from FAH, LLC and certain of the Continuing Equity Owners and common units it acquires from the Former Equity Owners;

 

    Funko, Inc. will be the sole managing member of FAH, LLC and will control the business and affairs of FAH, LLC and its subsidiaries;

 

    Funko, Inc. will own, directly or indirectly,          common units of FAH, LLC, representing approximately     % of the economic interest in FAH, LLC (or          common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

    the Continuing Equity Owners (1) will own          common units of FAH, LLC (excluding          common units subject to time-based vesting requirements), representing approximately     % of the economic interest in FAH, LLC (or          common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (2) will own              shares of Class B common stock of Funko, Inc., representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

    the purchasers in this offering (1) will own              shares of Class A common stock of Funko, Inc. (or              shares of Class A common stock of Funko, Inc. if the underwriters exercise in full their option to purchase additional shares of Class A common stock), representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock and approximately     % of the economic interest in Funko, Inc. (or approximately     % of the combined voting power and approximately     % of the economic interest if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (2) through Funko, Inc.’s ownership of FAH, LLC’s common units, indirectly will hold approximately     % of the economic interest in FAH, LLC (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock); and

 

   

ACON (1) will own              shares of Class A common stock of Funko, Inc. (or              shares of Class A common stock of Funko, Inc. if the underwriters exercise in full their option to purchase

 



 

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additional shares of Class A common stock), representing approximately     % of the economic interest in Funko, Inc. (or approximately     % of the economic interest if the underwriters exercise in full their option to purchase additional shares of Class A common stock), (2) will own              shares of Class B common stock of Funko, Inc., which combined with the Class A common stock described in clause (1) will represent approximately     % of the combined voting power of all of Funko, Inc.’s common stock (or approximately     % of the combined voting power if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (3) through Funko, Inc.’s ownership of common units of FAH, LLC and ACON’s ownership of common units of FAH, LLC, directly or indirectly will hold approximately     % of the economic interest in FAH, LLC (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock).

As the sole managing member of FAH, LLC, we will operate and control all of the business and affairs of FAH, LLC and, through FAH, LLC and its subsidiaries, conduct the business. Following the Transactions, including this offering, we will record a significant non-controlling interest in our consolidated subsidiary, FAH, LLC, relating to the ownership interest of the Continuing Equity Owners. Accordingly, although Funko, Inc. will have a minority economic interest in FAH, LLC, it will control the management of FAH, LLC as the sole managing member. As a result, Funko, Inc. will consolidate FAH, LLC and record a non-controlling interest in consolidated entity for the economic interest in FAH, LLC held by the Continuing Equity Owners.

Unless otherwise indicated, this prospectus assumes the shares of Class A common stock are offered at $        per share (the midpoint of the price range listed on the cover page of this prospectus). Although the number of shares of Class A common stock being offered hereby to the public and the total number of FAH, LLC common units outstanding after the offering will remain fixed regardless of the initial public offering price in this offering, certain share information and FAH, LLC common unit information presented in this prospectus will vary depending on the initial public offering price in this offering. Specifically, the relative allocation of the common units issued in the Transactions as among the Original Equity Owners will vary, depending on the initial public offering price in this offering, which will also impact the shares of Class A common stock and Class B common stock issued to the Original Equity Owners in the Transactions. An increase in the assumed initial public offering price would result in a decrease in the amount of common units of FAH, LLC and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and an increase in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis. A decrease in the assumed initial public offering price would result in an increase in the amount of common units and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and a decrease in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis.

For more information regarding our structure, see “Our Organizational Structure.”

 



 

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Ownership Structure

The diagram below depicts our organizational structure after giving effect to the Transactions, including this offering, assuming no exercise by the underwriters of their option to purchase additional shares of Class A common stock.

 

 

LOGO

 

(1)   Includes Fundamental, the Former Profits Interests Holders, the Warrant Holders, certain of our current executive officers, other employees and directors and each of their permitted transferees. The common units held by the Continuing Equity Owners exclude                      common units that will be subject to time-based vesting.
(2)   FAH, LLC, its direct wholly owned subsidiary FHL and its indirect wholly owned subsidiary Funko, LLC are the borrowers under our Senior Secured Credit Facilities.
(3) A portion of these common units will be held through wholly owned subsidiaries of Funko, Inc. as a result of the Former Equity Owners exchanging their indirect ownership interests in common units of FAH, LLC for shares of Class A common stock on a one-to-one basis as part of the Transactions.

 



 

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Our Corporate Information

Funko, Inc., the issuer of the Class A common stock in this offering, was incorporated as a Delaware corporation on April 21, 2017. Our corporate headquarters are located at 2802 Wetmore Avenue, Everett, WA 98201. Our telephone number is (425) 783-3616. Our principal website address is www.funko.com . The information on any of our websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.

After giving effect to the Transactions, including this offering, Funko, Inc. will be a holding company whose principal asset will consist of     % of the outstanding common units of FAH, LLC, a Delaware limited liability company (or     % if the underwriters exercise in full their option to purchase additional shares of our Class A common stock).

Implications of Being an Emerging Growth Company

We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may take advantage of certain reduced reporting and other requirements that are otherwise generally applicable to public companies. As a result:

 

    we are required to have only two years of audited financial statements and only two years of related selected financial data and Management’s Discussion and Analysis of Financial Condition and Results of Operations disclosure;

 

    we are not required to engage an auditor to report on our internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act;

 

    we are not required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board, or the PCAOB, regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis);

 

    we are not required to submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency” and “say-on-golden parachutes;” and

 

    we are not required to comply with certain disclosure requirements related to executive compensation, such as the requirement to disclose the correlation between executive compensation and performance and the requirement to present a comparison of our Chief Executive Officer’s compensation to our median employee compensation.

We may take advantage of these reduced reporting and other requirements until the last day of our fiscal year following the fifth anniversary of the completion of this offering, or such earlier time that we are no longer an emerging growth company. However, if certain events occur prior to the end of such five-year period, including if we have more than $1.07 billion in annual revenue, have more than $700 million in market value of our Class A common stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period, we will cease to be an emerging growth company prior to the end of such five-year period. We may choose to take advantage of some but not all of these reduced burdens. We have elected to adopt the reduced requirements with respect to our financial statements and the related selected financial data and Management’s Discussion and Analysis of Financial Condition and Results of Operations disclosure. As a result, the information that we provide to stockholders may be different than the information you may receive from other public companies in which you hold equity.

 



 

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As mentioned above, the JOBS Act permits an emerging growth company like us to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We have chosen to “opt out” of this provision and, as a result, we will comply with new or revised accounting standards as required when they are adopted. This decision to opt out of the extended transition period is irrevocable.

ACON Investments

ACON Investments, L.L.C. is a Washington, D.C.-based international private equity investment firm that manages capital through varied investment funds and special purpose partnerships. From its inception in 1996 through June 30, 2017, ACON Investments, L.L.C. and its affiliates have managed approximately $5.5 billion of capital. ACON Investments, L.L.C and its affiliates have professionals in Washington, D.C., Los Angeles, Mexico City, Sao Paulo and Bogota. For additional information regarding ACON’s ownership in us after this offering, see “—Summary of the Transactions” and “Principal and Selling Stockholders.”

 



 

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The Offering

 

Issuer

   Funko, Inc.

Shares of Class A common stock offered by us

                shares.

Shares of Class A common stock offered by the selling stockholders

  


             shares.

Underwriters’ option to purchase additional shares of Class A common stock from us and the selling stockholders

  



             shares.

Shares of Class A common stock to be issued to the Former Equity Owners

  


             shares.

Shares of Class A common stock to be outstanding immediately after this offering

  


             shares, representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock and 100% of the economic interest in Funko, Inc.

Shares of Class B common stock to be outstanding immediately after this offering

  


             shares, representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock and no economic interest in Funko, Inc.

Common units of FAH, LLC to be held by us immediately after this offering

  


             common units, representing approximately     % of the economic interest in FAH, LLC (or          common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock).

Common units of FAH, LLC to be held by the Continuing Equity Owners immediately after this offering

  



             common units, representing approximately     % of the economic interest in FAH, LLC (or          common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock).

Ratio of shares of Class A common stock to common units

  


Our amended and restated certificate of incorporation and the FAH LLC Agreement will require that we and FAH, LLC at all times maintain a one-to-one ratio between the number of shares of Class A common stock issued by us and the number of common units of FAH, LLC owned by us.

Ratio of shares of Class B common stock to common units

  


Our amended and restated certificate of incorporation and the FAH LLC Agreement will require that we and FAH, LLC at all times maintain a one-to-one ratio between the number

 



 

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   of shares of Class B common stock owned by the Continuing Equity Owners and the number of common units of FAH, LLC owned by the Continuing Equity Owners. Immediately after this offering, the Continuing Equity Owners will own 100% of the outstanding shares of our Class B common stock.

Permitted holders of shares of Class B common stock

  


Only the Continuing Equity Owners and the permitted transferees of Class B common stock as described in this prospectus will be permitted to hold shares of our Class B common stock. Shares of Class B common stock are transferable only together with an equal number of common units of FAH, LLC. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering.”

Voting rights

   Holders of shares of our Class A common stock and our Class B common stock will vote together as a single class on all matters presented to stockholders for their vote or approval, except as otherwise required by law or our amended and restated certificate of incorporation. Each share of Class A common stock and Class B common stock entitles its holders to one vote per share on all matters presented to our stockholders generally. See “Description of Capital Stock.”

Redemption rights of holders of common units

   The Continuing Equity Owners may from time to time at each of their options (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) require FAH, LLC to redeem all or a portion of their common units (             common units outstanding immediately after this offering) in exchange for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of our Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions— FAH LLC Agreement.” Simultaneously with the payment of cash or shares of Class A common

 



 

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   stock, as applicable, in connection with a redemption or exchange of common units pursuant to the terms of the FAH LLC Agreement, a number of shares of our Class B common stock registered in the name of the redeeming or exchanging Continuing Equity Owner will be cancelled for no consideration on a one-for-one basis with the number of common units so redeemed or exchanged.

Use of proceeds

   We estimate, based upon an assumed initial public offering price of $             per share (which is the midpoint of the price range set forth on the cover page of this prospectus), that we will receive net proceeds from this offering of approximately $             million (or $             million if the underwriters exercise in full their option to purchase additional shares of Class A common stock), after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We intend to use the net proceeds from this offering to purchase (1)              common units (or              common units if the underwriters exercise in full their option to purchase additional shares of Class A common stock) directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering, less the underwriting discounts and commissions, and (2)              common units directly from certain of the Continuing Equity Owners at a price per unit equal to the initial public offering price per share of Class A common stock in this offering, less the underwriting discounts and commissions. FAH, LLC intends to use $             of the net proceeds from the sale of common units to Funko, Inc. to repay the Subordinated Promissory Notes (as defined below), repay a portion of the outstanding borrowings under our Senior Secured Credit Facilities and the remainder for general corporate purposes. FAH, LLC will not receive any proceeds that Funko, Inc. uses to purchase common units from certain of the Continuing Equity Owners, and we will not receive any of the proceeds from the sale of shares of our Class A common stock by the selling stockholders. FAH, LLC will bear or reimburse Funko, Inc. and the selling stockholders for all of the expenses of this offering. See “Use of Proceeds.”

Dividend policy

   We currently intend to retain all available funds and any future earnings to fund the development and growth of our business and to repay

 



 

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   indebtedness, and therefore we do not anticipate declaring or paying any cash dividends on our Class A common stock in the foreseeable future. Holders of our Class B common stock are not entitled to participate in any dividends declared by our board of directors. Additionally, our ability to pay any cash dividends on our Class A common stock is limited by restrictions on the ability of FAH, LLC and our other subsidiaries to pay dividends or make distributions under the terms of our Senior Secured Credit Facilities. Additionally, because we are a holding company, our ability to pay cash dividends on our Class A common stock depends on our receipt of cash distributions from FAH, LLC and, through FAH, LLC, cash distributions and dividends from our other direct and indirect wholly owned subsidiaries. Any future determination as to the declaration and payment of dividends, if any, will be at the discretion of our board of directors, subject to compliance with contractual restrictions and covenants in the agreements governing our current and future indebtedness. Any such determination will also depend upon our business prospects, results of operations, financial condition, cash requirements and availability, industry trends and other factors that our board of directors may deem relevant. See “Dividend Policy.”

Controlled company exception

   After the consummation of this offering, we will be considered a “controlled company” for the purposes of the Nasdaq rules as ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, will, in the aggregate, have more than 50% of the voting power for the election of directors. See “Principal and Selling Stockholders.” As a “controlled company,” we will not be subject to certain corporate governance requirements, including that: (1) a majority of our board of directors consists of “independent directors,” as defined under the Nasdaq rules; (2) we have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; (3) we have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and (4) we perform annual performance evaluations of the nominating and corporate governance and compensation committees. As a result, we may not have a

 



 

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   majority of independent directors on our board of directors, an entirely independent nominating and corporate governance committee, an entirely independent compensation committee or perform annual performance evaluations of the nominating and corporate governance and compensation committees unless and until such time as we are required to do so.

Tax receivable agreement

   We will enter into a Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners that will provide for the payment by Funko, Inc. to the Continuing Equity Owners of 85% of the amount of tax benefits, if any, that Funko, Inc. actually realizes (or in some circumstances is deemed to realize) as a result of (1) increases in tax basis resulting from Funko, Inc.’s purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in connection with this offering, as described under “Use of Proceeds,” and future redemptions funded by Funko, Inc. or exchanges (or deemed exchanges in certain circumstances) of common units for Class A common stock described above under “—Redemption rights of holders of common units,” and (2) certain additional tax benefits attributable to payments made under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement” for a discussion of the Tax Receivable Agreement.

Registration rights agreement

   Pursuant to the Registration Rights Agreement, we will, subject to the terms and conditions thereof, agree to register the resale of the shares of our Class A common stock that are issuable to certain of the Continuing Equity Owners (including each of our executive officers) upon redemption or exchange of their common units of FAH, LLC and the shares of our Class A common stock that are issued to the Former Equity Owners in connection with the Transactions. See “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

Risk factors

   See “Risk Factors” beginning on page 28 and other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in shares of our Class A common stock.

Trading symbol

   We have applied to list our Class A common stock on the Nasdaq Global Select Market under the symbol “FNKO.”

 



 

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Unless we indicate otherwise or the context otherwise requires, all information in this prospectus:

 

    gives effect to the amendment and restatement of the FAH LLC Agreement that converts all existing ownership interests in FAH, LLC into              common units, as well as the filing of our amended and restated certificate of incorporation;

 

    gives effect to the other Transactions, including the consummation of this offering;

 

    excludes              shares of Class A common stock reserved for issuance under our 2017 Equity Plan, or 2017 Plan, including shares of Class A common stock issuable pursuant to              stock options and              restricted stock units granted to certain of our directors and certain of our employees in connection with this offering as described under the captions “Executive Compensation—Executive Compensation Arrangements—Director Compensation” and “Executive Compensation—Equity Compensation Plans—2017 Incentive Award Plan;”

 

    excludes              options to purchase common units in FAH, LLC at a price of $             per unit, all of which are expected to be vested as of the consummation of this offering;

 

    excludes              common units to be held by certain Former Profits Interests Holders that are subject to time-based vesting requirements;

 

    excludes shares of Class A common stock that may be issuable upon exercise of redemption rights of the Continuing Equity Owners (or at our election, a direct exchange);

 

    assumes an initial public offering price of $             per share of Class A common stock, which is the midpoint of the range set forth on the cover page of this prospectus; and

 

    assumes no exercise by the underwriters of their option to purchase              additional shares of Class A common stock from us.

Unless otherwise indicated, this prospectus assumes the shares of Class A common stock are offered at $             per share (the midpoint of the price range listed on the cover page of this prospectus). Although the number of shares of Class A common stock being offered hereby to the public and the total number of FAH, LLC common units outstanding after the offering will remain fixed regardless of the initial public offering price in this offering, certain share information and FAH, LLC common unit information presented in this prospectus will vary depending on the initial public offering price in this offering. Specifically, the relative allocation of the common units issued in the Transactions as among the Original Equity Owners will vary, depending on the initial public offering price in this offering, which will also impact the shares of Class A common stock and Class B common stock issued to the Original Equity Owners in the Transactions. An increase in the assumed initial public offering price would result in a decrease in the amount of common units of FAH, LLC and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and an increase in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis. A decrease in the assumed initial public offering price would result in an increase in the amount of common units and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and a decrease in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis.

 



 

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Summary Historical and Pro Forma Consolidated Financial and Other Data

The following tables present the summary historical consolidated financial and other data for FAH, LLC and its subsidiaries and the summary pro forma consolidated financial and other data for Funko, Inc. FAH, LLC is the predecessor of the issuer, Funko, Inc., for financial reporting purposes. The summary consolidated statements of operations data and statements of cash flows data for the year ended December 31, 2016 (Successor), the period from October 31, 2015 through December 31, 2015 (Successor) and the period from January 1, 2015 through October 30, 2016 (Predecessor), and the summary consolidated balance sheet data as of December 31, 2016 are derived from the audited consolidated financial statements of FAH, LLC included elsewhere in this prospectus. The summary consolidated statements of operations data and statements of cash flows data for the six months ended June 30, 2017 and 2016, and the summary consolidated balance sheet data as of June 30, 2017 are derived from the unaudited consolidated financial statements of FAH, LLC included elsewhere in this prospectus. We have prepared the unaudited consolidated financial information set forth below on the same basis as our audited consolidated financial statements and have included all adjustments, consisting of only normal recurring adjustments, that we consider necessary for a fair presentation of our financial position and results of operations for such periods.

The results for any interim period are not necessarily indicative of the results that may be expected for a full year. Additionally, the results of operations for the periods presented below are not necessarily indicative of the results to be expected for any future period. The information set forth below should be read together with the “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and the accompanying notes included elsewhere in this prospectus.

The summary unaudited pro forma consolidated financial data of Funko, Inc. presented below have been derived from our unaudited pro forma consolidated financial statements included elsewhere in this prospectus. The summary unaudited pro forma consolidated financial data for the year ended December 31, 2016 and as of and for the six months ended June 30, 2017 give effect to the Transactions, including the consummation of this offering and the use of proceeds therefrom, as described in “Our Organizational Structure” and “Use of Proceeds,” as if all such transactions had occurred on January 1, 2016, in the case of the summary unaudited pro forma consolidated statements of operations data, and as of June 30, 2017, in the case of the summary unaudited pro forma consolidated balance sheet data. The unaudited pro forma consolidated financial information includes various estimates which are subject to material change and may not be indicative of what our operations or financial position would have been had this offering and related transactions taken place on the dates indicated, or that may be expected to occur in the future. See “Unaudited Pro Forma Consolidated Financial Information” for a complete description of the adjustments and assumptions underlying the summary unaudited pro forma consolidated financial data.

 



 

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The summary historical consolidated financial and other data of Funko, Inc. has not been presented because Funko, Inc. is a newly incorporated entity, has had no business transactions or activities to date and had no assets or liabilities during the periods presented in this section.

 

    Pro Forma
Funko, Inc.
    Historical FAH, LLC  
      Successor          Predecessor  
    Six Months
Ended
June 30, 2017
    Year Ended
December 31,
2016
   

 

Six Months Ended

June 30,

    Year Ended
December 31,
2016
    Period from
October 31,
2015

through
December 31,
2015
         Period from
January 1,

2015
through
October 30,
2015
 
        2017     2016             
    (unaudited)     (unaudited)                         
    (in thousands, except per share data and margins)  

Consolidated Statements of Operations Data:

           

Net sales

  $                 $                 $ 203,798     $ 176,261     $ 426,717     $ 56,565         $ 217,491  

Cost of sales (exclusive of depreciation and amortization shown separately below)

        130,066       125,799       280,396       44,485           131,621  

Selling, general and administrative expenses

        50,901       37,087       77,525       13,894           37,145  

Acquisition transaction costs

        3,086       349       1,140       7,559           13,301  

Depreciation and amortization

        14,322       11,174       23,509       3,370           5,723  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Income (loss) from operations

        5,423       1,852       44,147       (12,743         29,701  

Interest expense, net

        14,677       7,879       17,267       2,818           2,202  

Other income, net

        (113     —         —         —             —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Income (loss) before income taxes

        (9,141     (6,027     —         —             —    

Income tax expense

        1,024       —         —         —             —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Net income (loss)

  $   $   $ (10,165   $ (6,027   $ 26,880     $ (15,561       $ 27,499  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Pro Forma Net Income Per Share Data (1) :

                 

Pro forma weighted average shares of Class A common stock outstanding:

                 

Basic

                 

Diluted

                 

Consolidated Statements of Cash Flows Data:

                 

Net cash provided by operating activities

      $ 15,750     $ 16,389     $ 49,468     $ 14,110         $ 8,538  

Net cash used in investing activities

        (46,764     (8,014     (22,105     (244,421         (10,043

Net cash (used in) provided by financing activities

        37,627       3,339       (45,613     244,456           11,390  

Selected Other Data:

                 

EBITDA (2)

  $                   $                   $ 19,858     $ 13,026     $ 67,656     $ (9,373       $ 35,424  

Adjusted EBITDA (2)

  $     $     $ 31,284     $ 35,644     $ 96,960     $ 13,170         $ 61,996  

Net income (loss) margin

    %       %       (5.0 )%      (3.4 )%      6.3     (27.5 )%          12.6

Adjusted EBITDA margin (2)

    %       %       15.4     20.2     22.7     23.3         28.5

 



 

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    Pro Forma
Funko, Inc. (3)
   Historical FAH, LLC  
    June 30, 2017    June 30, 2017      December 31, 2016  
    (unaudited)    (unaudited)         
    (in thousands)  

Consolidated Balance Sheets Data (at period end):

       

Cash and cash equivalents

  $                $ 12,752      $ 6,161  

Total assets

       588,380        522,237  

Total debt (4)

       339,064        217,753  

Total members’/stockholders’ equity

       154,990        217,377  

 

(1)   See Note (f) to the unaudited pro forma consolidated statements of operations for the year ended December 31, 2016 in “Unaudited Pro Forma Consolidated Financial Information” for the calculation of pro forma basic net income per share and pro forma diluted net income per share.
(2)   EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are supplemental measures of our performance that are not required by, or presented in accordance with, GAAP. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are not measurements of our financial performance under GAAP and should not be considered as an alternative to net income or any other performance measure derived in accordance with GAAP, or as an alternative to cash flows from operating activities as a measure of our liquidity.

We define “EBITDA” as net income before interest expense, net, income tax expense and depreciation and amortization. We define “Adjusted EBITDA” as EBITDA further adjusted for monitoring fees, non-cash charges related to equity-based compensation programs, earnout fair market value adjustments, inventory step-ups, acquisition transaction costs, foreign currency transaction (gains) losses and other unusual or one-time items. We define Adjusted EBITDA margin as the ratio of Adjusted EBITDA to net sales. We caution investors that amounts presented in accordance with our definitions of EBITDA, Adjusted EBITDA and Adjusted EBITDA margin may not be comparable to similar measures disclosed by our competitors, because not all companies and analysts calculate EBITDA, Adjusted EBITDA and Adjusted EBITDA margin in the same manner. We present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin because we consider them to be important supplemental measures of our performance and believe they are frequently used by securities analysts, investors and other interested parties in the evaluation of companies in our industry. Management believes that investors’ understanding of our performance is enhanced by including these non-GAAP financial measures as a reasonable basis for comparing our ongoing results of operations.

Management uses EBITDA, Adjusted EBITDA and Adjusted EBITDA margin:

 

    as a measurement of operating performance because they assist us in comparing the operating performance of our business on a consistent basis, as they remove the impact of items not directly resulting from our core operations;

 

    for planning purposes, including the preparation of our internal annual operating budget and financial projections;

 

    as a consideration to assess incentive compensation for our employees;

 

    to evaluate the performance and effectiveness of our operational strategies; and

 

    to evaluate our capacity to expand our business.

By providing these non-GAAP financial measures, together with reconciliations, we believe we are enhancing investors’ understanding of our business and our results of operations, as well as assisting investors in evaluating how well we are executing our strategic initiatives. In addition, our Senior Secured Credit Facilities use Adjusted EBITDA to measure our compliance with covenants such as senior leverage ratio. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin have limitations as analytical tools, and should not be considered in isolation, or as an alternative to, or a substitute for net income, net income (loss) margin or other financial statement data presented in our consolidated financial statements included elsewhere in this prospectus as indicators of financial performance. Some of the limitations are:

 

    such measures do not reflect our cash expenditures, or future requirements for capital expenditures or contractual commitments;

 

    such measures do not reflect changes in, or cash requirements for, our working capital needs;

 

    such measures do not reflect the interest expense, or the cash requirements necessary to service interest or principal payments on our debt;

 

    such measures do not reflect our tax expense or the cash requirements to pay our taxes;

 

    although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future and such measures do not reflect any cash requirements for such replacements; and

 



 

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    other companies in our industry may calculate such measures differently than we do, limiting their usefulness as comparative measures.

Due to these limitations, EBITDA, Adjusted EBITDA and Adjusted EBITDA margin should not be considered as measures of discretionary cash available to us to invest in the growth of our business. We compensate for these limitations by relying primarily on our GAAP results and using these non-GAAP measures only supplementally. As noted in the table below, Adjusted EBITDA includes adjustments for monitoring fees, non-cash charges related to equity-based compensation programs, earnout fair market value adjustments, inventory step-ups, acquisition transaction costs and other unusual or one-time items. It is reasonable to expect that these items will occur in future periods. However, we believe these adjustments are appropriate because the amounts recognized can vary significantly from period to period, do not directly relate to the ongoing operations of our business and complicate comparisons of our internal operating results and operating results of other companies over time. In addition, Adjusted EBITDA includes adjustments for other items that we do not expect to regularly record following this offering. Each of the normal recurring adjustments and other adjustments described in this paragraph and in the reconciliation table below help management with a measure of our core operating performance over time by removing items that are not related to day-to-day operations.

The following table reconciles EBITDA and Adjusted EBITDA to the most directly comparable GAAP financial performance measure, which is net income:

 

    Pro Forma
Funko, Inc.
    Historical FAH, LLC  
      Successor           Predecessor  
    Six Months
Ended
June 30, 2017
    Year Ended
December 31,
2016
   

 

Six Months Ended

June 30,

    Year Ended
December 31,
2016
    Period from
October 31,
2015

through
December 31,
2015
          Period from
January 1,
2015

through
October 30,
2015 
    Year Ended
December 31,
2014 
 
        2017     2016                
    (unaudited)     (unaudited)                                
    (in thousands)  

Net income (loss)

  $                 $                 $ (10,165   $ (6,027   $ 26,880     $ (15,561       $ 27,499     $ 19,615  

Interest expense, net

        14,677       7,879       17,267       2,818           2,202       2,693  

Income tax expense

        1,024                                    

Depreciation and amortization

        14,322       11,174       23,509       3,370           5,723       4,003  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

EBITDA

  $   $     $ 19,858     $ 13,026     $ 67,656     $ (9,373       $ 35,424     $ 26,311  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

Adjustments:

                   

Monitoring fees (a)

        981       749       1,498       272           3,346       1,416  

Equity-based compensation (b)

        3,745       1,166       2,369       4,484           9,925        

Earnout fair market value adjustment (c)

        8       6,630       8,561       1,540                  

Inventory step-up (d)

        2,630       13,435       13,434       8,688                  

Acquisition transaction costs and other expenses (e)

        4,175       638       3,442       7,559           13,301       385  

Foreign currency transaction (gain)
loss (f)

        (113                                  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

Adjusted EBITDA

  $   $   $ 31,284     $ 35,644     $   96,960     $   13,170         $   61,996     $   28,112  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

 

  (a)  

Represents monitoring fees paid pursuant to a management services agreement with Fundamental Capital, LLC, which was terminated in 2015 in connection with the ACON Acquisition, and a management services agreement

 



 

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  with ACON that was entered into in connection with the ACON Acquisition, which will terminate upon the consummation of this offering.
  (b)   Represents non-cash charges related to equity-based compensation programs, which vary from period to period depending on timing of awards.
  (c)   Reflects the increase in the fair value of contingent liabilities incurred in connection with the ACON Acquisition and the Underground Toys Acquisition.
  (d)   Represents a non-cash adjustment to cost of sales resulting from the ACON Acquisition and the Underground Toys Acquisition.
  (e)   Represents legal, accounting, and other related costs incurred in connection with this offering, the ACON Acquisition, the Underground Toys Acquisition, the Loungefly Acquisition and other potential acquisitions.
  (f)   Represents both unrealized and realized foreign currency (gains) losses on transactions other than in U.S. dollars.

 

(3)   Each $1.00 increase or decrease in the assumed initial public offering price of $             per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease each of cash, total assets and total stockholders’ equity on a pro forma basis by approximately $             million, assuming the number of shares offered, as set forth on the cover page of this prospectus, remains the same, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
(4)   Total debt as of June 30, 2017 consists of the Subordinated Promissory Notes and borrowings under our Senior Secured Credit Facilities, net of unamortized discount of $12.1 million. Total debt as of December 31, 2016 consists of borrowings under our Senior Secured Credit Facilities, net of unamortized discount of $6.4 million. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Description of Subordinated Promissory Notes” and “—Description of Senior Secured Credit Facilities” and “Description of Certain Indebtedness.” Also see our audited consolidated financial statements included elsewhere in this prospectus, which include all liabilities.

 



 

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RISK FACTORS

You should carefully consider the risks described below, together with all of the other information included in this prospectus, before making an investment decision. Our business, financial condition and results of operations could be materially and adversely affected by any of these risks or uncertainties. In that case, the trading price of our Class A common stock could decline, and you may lose all or part of your investment.

Risks Related to Our Business

Our success depends on our ability to execute our business strategy.

Our net sales and profitability have grown rapidly in recent periods; however, this should not be considered indicative of our future performance. Our future growth, profitability and cash flows depend upon our ability to successfully execute our business strategy, which is dependent upon a number of factors, including our ability to:

 

    expand our market presence in existing sales channels and enter additional sales channels;

 

    anticipate, gauge and respond to rapidly changing consumer preferences and pop culture trends;

 

    acquire or enter into new licenses in existing product categories or in new product categories;

 

    expand our geographic presence to take advantage of opportunities outside of the United States;

 

    enhance and maintain favorable brand recognition for our company and product offerings;

 

    maintain and expand margins through sales growth and efficiency initiatives;

 

    effectively manage our relationships with third-party manufacturers;

 

    effectively manage our debt, working capital and capital investments to maintain and improve the generation of cash flow; and

 

    execute any acquisitions quickly and efficiently and integrate businesses successfully.

There can be no assurance that we can successfully execute our business strategy in the manner or time period that we expect. Further, achieving these objectives will require investments which may result in short-term costs without generating any current sales or countervailing cost savings and, therefore, may be dilutive to our earnings, at least in the short term. In addition, we may decide to divest or discontinue certain brands or products or streamline operations and incur other costs or special charges in doing so. We may also decide to discontinue certain programs or sales to certain retailers based on anticipated strategic benefits. The failure to realize the anticipated benefits from our business strategy could have a material adverse effect on our prospects, business, financial condition and results of operations.

Our business is dependent upon our license agreements, which involve certain risks.

Products from which we generate substantially all of our net sales are produced under license agreements which grant us the right to use certain intellectual property in such products. These license agreements typically have short terms (between two and three years), are not automatically renewable, and, in some cases, give the licensor the right to terminate the license agreement at will. Our license agreements typically provide that our licensors own the intellectual property rights in the products we design and sell under the license, and as a result, upon termination of the license, we would no longer have the right to sell these products, while our licensors could engage a competitor to do so. We

 

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believe our ability to retain our license agreements depends, in large part, on the strength of our relationships with our licensors. Any events or developments adversely affecting those relationships, or the loss of one or more members of our management team, particularly our Chief Executive Officer, could adversely affect our ability to maintain and renew our license agreements on similar terms or at all. Our top ten licensors collectively accounted for approximately 70% and 80% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 77% and 81% of our 2016 and 2015 net sales, respectively. Our largest licensor, Warner Brothers, accounted for approximately 17% and 21% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and 21% and 15% of our 2016 and 2015 net sales, respectively. Moreover, while we have separate licensing arrangements with Disney, LucasFilm and Marvel, these parties are all under common ownership and collectively these licensors accounted for approximately 30% and 37% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 31% and 45% of our 2016 and 2015 net sales, respectively. The termination or lack of renewal of one or more of our license agreements, or the renewal of a license agreement on less favorable terms, could have a material adverse effect on our business, financial condition and results of operations. While we may enter into additional license agreements in the future, the terms of such license agreements may be less favorable than the terms of our existing license agreements.

Our license agreements are complex, and typically grant our licensors the right to audit our compliance with the terms and conditions of such agreements. Any such audit could result in a dispute over whether we have paid the proper royalties, which could require us to pay additional royalties, and the amounts involved could be material. For example, as of June 30, 2017, we had a reserve of $4.0 million on our balance sheet related to ongoing and future royalty audits. In addition to royalty payments, these agreements as a whole impose numerous other obligations on us, including obligations to, among other things:

 

    maintain the integrity of the applicable intellectual property;

 

    obtain the licensor’s approval of the products we develop under the license prior to making any sales;

 

    permit the licensor’s involvement in, or obtain the licensor’s approval of, advertising, packaging and marketing plans;

 

    maintain minimum sales levels or make minimum guaranteed royalty payments;

 

    actively promote the sale of the licensed product and maintain the availability of the licensed product throughout the license term;

 

    spend a certain percentage of our sales of the licensed product on marketing and advertising for the licensed product;

 

    sell the products we develop under the license only within a specified territory or within specified sales channels;

 

    indemnify the licensor in the event of product liability or other claims related to the licensed product and advertising or other materials used to promote the licensed product;

 

    obtain the licensor’s approval of the retail price of the licensed products;

 

    sell the licensed products to the licensor at a discounted price or at the lowest price charged to our customers;

 

    obtain the licensor’s consent prior to assigning or sub-licensing to third parties; and

 

    provide notice to the licensor or obtain its approval of certain changes in control.

If we breach any of these obligations or any other obligations set forth in any of our license agreements, we could be subject to monetary penalties and our rights under such license agreements

 

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could be terminated, either of which could have a material adverse effect on our business, financial condition and results of operations.

Our success is also partially dependent on the reputation of our licensors and the goodwill associated with their intellectual property, and the ability of our licensors to protect and maintain the intellectual property rights that we use in connection with our products, all of which may be harmed by factors outside our control. See also “—If we are unable to obtain, maintain and protect our intellectual property rights, in particular trademarks and copyrights, or if our licensors are unable to maintain and protect their intellectual property rights that we use in connection with our products, our ability to compete could be negatively impacted.”

As a purveyor of licensed pop culture consumer products, we cannot assure you that we will be able to design and develop products that will be popular with consumers, or that we will be able to maintain the popularity of successful products.

The interests of consumers evolve extremely quickly and can change dramatically from year to year. To be successful we must correctly anticipate both the products and the movies, TV shows, video games, music, sports and other content releases (including the related characters), that will appeal to consumers and quickly develop and introduce products that can compete successfully for consumers’ limited time, attention and spending. Evolving consumer tastes and shifting interests, coupled with an ever changing and expanding pipeline of consumer products and content that compete for consumers’ interest and acceptance, create an environment in which some products and content can fail to achieve consumer acceptance, while others can be popular during a certain period of time but then be rapidly replaced. As a result, consumer products, particularly those based on pop culture such as ours, can have short life cycles. In addition, given the growing market for digital products and the increasingly digital nature of pop culture, there is also a risk that consumer demand for physical products may decrease over time. If we devote time and resources to developing and marketing products that consumers do not find appealing enough to buy in sufficient quantities of our products to be profitable to us, our sales and profits may decline and our business performance may be damaged. Similarly, if our product offerings fail to correctly anticipate consumer interests, our sales and earnings will be adversely affected.

Additionally, our business is increasingly global and depends on interest in and acceptance of our products and our licensors’ brands by consumers in diverse markets around the world with different tastes and preferences. As such, our success depends on our ability to successfully predict and adapt to changing consumer tastes and preferences in multiple markets and geographies and to design products that can achieve popularity globally over a broad and diverse consumer audience. There is no guarantee that we will be able to successfully develop and market products with global appeal.

Consumer demand for pop culture products can and does shift rapidly and without warning. As a result, even if our product offerings are initially successful, there can be no guarantee that we will be able to maintain their popularity with consumers. Accordingly, our success will depend, in part, on our ability to continually design and introduce new products that consumers find appealing. To the extent we are unable to do so, our sales and profitability will be adversely affected. This is particularly true given the concentration of our sales under certain of our brands, particularly Pop!. Sales of our Pop! branded products accounted for approximately 68% and 69% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 64% and 75% of our 2016 and 2015 net sales, respectively. If consumer demand for our Pop! branded products were to decrease, our business, financial condition and results of operations could be adversely affected unless we were able to develop and market additional products that were successful in achieving a similar level of consumer acceptance and that generated an equivalent amount of net sales at a comparable gross margin, which there is no guarantee we would be able to do.

 

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Changes in the retail industry and markets for consumer products affecting our retail customers or retailing practices could negatively impact our business, financial condition and results of operations.

Our products are primarily sold to consumers through retailers that are our direct customers or customers of our distributors. As such, changes in the retail industry can negatively impact our business, financial condition and results of operations.

Due to the challenging environment for traditional “brick-and-mortar” retail locations caused by declining in-store traffic, many retailers are closing physical stores, and some traditional retailers are engaging in significant reorganizations, filing for bankruptcy and going out of business. For example, in September 2017, Toys “R” Us, Inc. and certain of its subsidiaries filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code. Such entities accounted for approximately 3.8% of our net sales for the six months ended June 30, 2017 and 3.4% of our net sales for the year ended December 31, 2016. In addition to furthering consolidation in the retail industry, such a trend could have a negative effect on the financial health of our retail customers and distributors, potentially causing them to experience difficulties in fulfilling their payment obligations to us or our distributors, reduce the amount of their purchases, seek extended credit terms or otherwise change their purchasing patterns, alter the manner in which they promote our products or the resources they devote to promoting and selling our products or cease doing business with us or our distributors. If any of our retail customers were to file for bankruptcy, we could be unable to collect amounts owed to us, and could even be required to repay certain amounts paid to us prior to the bankruptcy filing. The occurrence of any of these events would have an adverse effect on our business, cash flows, financial condition and results of operations.

If we do not effectively maintain and further develop our relationships with retail customers and distributors, our growth prospects, business and results of operations could be harmed.

Historically, substantially all of our net sales has been derived from our retail customers and distributors, upon which we rely to reach the consumers who are the ultimate purchasers of our products. In the United States, we primarily sell our products directly to specialty retailers, mass-market retailers and e-commerce sites. In international markets, we sell our products directly to similar retailers, primarily in Europe, through our subsidiary Funko UK, Ltd. We also sell our products to distributors for sale to retailers in the United States and in certain countries internationally, typically in those countries in which we do not currently have a direct presence. Our top ten customers represented approximately 45% and 61% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 63% and 60% of our 2016 and 2015 net sales, respectively. Additionally, our largest customer, GameStop, represented approximately 12%, 12% and 11% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively. Additionally, Underground Toys Limited represented approximately 8%, 18% and 10% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively, and Hot Topic represented approximately 9%, 8% and 11% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively.

We depend on retailers to provide adequate and attractive space for our products and point of purchase displays in their stores. We further depend on our retail customers to employ, educate and motivate their sales personnel to effectively sell our products. If our retail customers do not adequately display our products or choose to promote competitors’ products over ours, our sales could decrease and our business could be harmed. Similarly, we depend on our distributors to reach retailers in certain market segments in the United States and to reach international retailers in countries where we do not have a direct presence. Our distributors generally offer products from several different companies, including our competitors. Accordingly, we are at risk that these distributors may give higher priority to selling other companies’ products. If we were to lose the services of a distributor, we might need to find another distributor in that area, and there can be no assurance of our ability to do so in a timely manner or on favorable terms.

 

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In addition, our business could be adversely affected if any of our retail customers or distributors were to reduce purchases of our products. Our retail customers and distributors generally build inventories in anticipation of future sales, and will decrease the size of their future product orders if sales do not occur as rapidly as they anticipate. Our customers make no long-term commitments to us regarding purchase volumes and can therefore freely reduce their purchases of our products. Any reduction in purchases of our products by our retail customers and distributors, or the loss of any key retailer or distributor, could adversely affect our net sales, operating results and financial condition.

Furthermore, as discussed in this prospectus, consumer preferences have shifted, and may continue to shift in the future, to sales channels other than traditional retail, including e-commerce, in which we have more limited experience, presence and development. Consumer demand for our products may be less in these channels than in traditional retail channels. In addition, our entry into new product categories and geographies has exposed, and may continue to expose, us to new sales channels in which we have less expertise. If we are not successful in developing our e-commerce channel and other new sales channels, our net sales and profitability may be adversely affected.

Our industry is highly competitive and the barriers to entry are low. If we are unable to compete effectively with existing or new competitors, our sales, market share and profitability could decline.

Our industry is, and will continue to be, highly competitive. We compete with toy companies in many of our product categories, some of which have substantially more resources than us, stronger name recognition, longer operating histories and greater economies of scale. We also compete with numerous smaller domestic and foreign collectible product designers and manufacturers. Across our business, we face competitors who are constantly monitoring and attempting to anticipate consumer tastes and trends, seeking ideas which will appeal to consumers and introducing new products that compete with our products for consumer acceptance and purchase.

In addition to existing competitors, the barriers to entry for new participants in our industry are low, and the increasing use of digital technology, social media and the internet to spark consumer interest has further increased the ability for new participants to enter our markets, and has broadened the array of companies we compete with. New participants can gain access to retail customers and consumers and become a significant source of competition for our products in a very short period of time. Additionally, since we do not have exclusive rights to any of the properties we license or the related entertainment brands, our competitors, including those with more resources and greater economies of scale, can obtain licenses to design and sell products based on the same properties that we license, potentially on more favorable terms. Any of these competitors may be able to bring new products to market more quickly, respond more rapidly than us to changes in consumer preferences and produce products of higher quality or that can be sold at more accessible price points. To the extent our competitors’ products achieve greater market acceptance than our products, our business, financial condition and results of operations will be adversely affected.

In addition, certain of our licensors have reserved the rights to manufacture, distribute and sell identical or similar products to those we design and sell under our license agreements. These products could directly compete with our products and could be sold at lower prices than those at which our products are sold, resulting in higher margins for our customers compared to our products, potentially lessening our customers’ demand for our products and adversely affecting our sales and profitability.

Furthermore, competition for access to the properties we license is intense, and we must vigorously compete to obtain licenses to the intellectual property we need to produce our products. This competition could lessen our ability to secure, maintain, and renew our existing licenses, or require us to pay licensors higher royalties and higher minimum guaranteed payments in order to

 

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obtain new licenses or retain our existing licenses. To the extent we are unable to license properties on commercially reasonable terms, or on terms at least as favorable as our competitors, our competitive position and demand for our products will suffer. Because our ability to compete for licensed properties is based largely on our ability to increase fan engagement and generate royalty revenues for our licensors, any reduction in the demand for and sales of our products will further inhibit our ability to obtain licenses on commercially reasonable terms or at all. As a result, any such reduction in the demand for and sales of our products could have a material adverse effect on our business, financial condition and results of operations.

We also increasingly compete with toy companies and other product designers for shelf space at specialty, mass-market and other retailers. Our retail customers will allocate shelf space and promotional resources based on the margins of our products for our customers, as well as their sales volumes. If toy companies or other competitors produce higher margin or more popular merchandise than our products, our retail customers may reduce purchases of our products and, in turn, devote less shelf space and resources to the sale of our products, which could have a material adverse effect on our sales and profitability.

We have experienced rapid growth in recent periods. If we fail to manage our growth effectively, our financial performance may suffer.

We have experienced rapid growth over the last several years, which has placed a strain on our managerial, operational, product design and development, sales and marketing, administrative and financial infrastructure. For example, we increased our total number of full-time employees from 66 as of December 31, 2013 to 465 as of June 30, 2017. As a result of our acquisition of certain of the assets of Underground Toys in January 2017, which we refer to as the Underground Toys Acquisition, we now have distribution operations in the United Kingdom, our first distribution center outside of our headquarters in Everett, Washington. Our success will depend in part upon our ability to manage our growth effectively. To do so, we must continue to increase the productivity of our existing employees and to hire, train and manage new employees as needed, which we may not be able to do successfully or without compromising our corporate culture. See “—Our success is critically dependent on the efforts and dedication of our officers and other employees, and the loss of any one or more key employees, or our inability to attract and retain qualified personnel and maintain our corporate culture, could adversely affect our business.” To manage domestic and international growth of our operations and personnel, we will need to continue to improve our product development, supply chain, financial and management controls and our reporting processes and procedures, and implement more extensive and integrated financial and business information systems. These additional investments will increase our operating costs, which will make it more difficult for us to offset any future revenue shortfalls by reducing expenses in the short term. Moreover, if we fail to scale our operations or manage our growth successfully, our business, financial condition and operating results could be adversely affected.

Our gross margin may not be sustainable and may fluctuate over time.

Our gross margin has historically fluctuated, primarily as a result of changes in product mix, changes in our costs, price competition and acquisitions. For the six months ended June 30, 2017 and 2016, our gross margins (exclusive of depreciation and amortization) were 36.2% and 28.6%, respectively, and for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period, our gross margins (exclusive of depreciation and amortization) were 34.3%, 21.4% and 39.5%, respectively. Our current gross margin may not be sustainable and our gross margin may decrease over time. A decrease in gross margin can be the result of numerous factors, including, but not limited to:

 

    changes in customer, geographic, or product mix;

 

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    introduction of new products, including our expansion into additional product categories;

 

    increases in the royalty rates under our license agreements;

 

    inability to meet minimum guaranteed royalties;

 

    increases in, or our inability to reduce, our costs;

 

    entry into new markets or growth in lower margin markets;

 

    increases in raw materials, labor or other manufacturing- and inventory-related costs;

 

    increases in transportation costs, including the cost of fuel;

 

    increased price competition;

 

    changes in the dynamics of our sales channels, including those affecting the retail industry and the financial health of our customers;

 

    increases in sales discounts and allowances provided to our customers;

 

    acquisitions of companies with a lower gross margin than ours; and

 

    overall execution of our business strategy and operating plan.

If any of these factors, or other factors unknown to us at this time, occur, then our gross margin could be adversely affected, which could have a material adverse effect on our business, financial condition and results of operations.

Our business is largely dependent on content development and creation by third parties.

We spend considerable resources in designing and developing products in conjunction with planned movie, TV show, video game, music and other content releases by various third-party content providers. The timing of the development and release, and the ultimate consumer interest in and success of, such content depends on the efforts of these third parties, as well as conditions in the media and entertainment industry generally. We do not control when or if any particular project will be greenlit, developed or released, and the creators of such projects may change their plans with respect to release dates or cancel development altogether. This can make it difficult for us to successfully develop and market products in conjunction with a given content release, given the lead times involved in product development and successful marketing efforts. Additionally, unforeseen factors in the media and entertainment industry, including labor strikes and unforeseen developments with talent, including accusations of a star’s wrongdoing, may also delay or cancel the release of such projects. Any such delay or cancellation may decrease the number of products we sell and harm our business.

We may not realize the full benefit of our licenses if the properties we license have less market appeal than expected or if sales from the products that use those properties are not sufficient to satisfy the minimum guaranteed royalties.

We seek to fulfill consumer preferences and interests by designing and selling products based on properties owned by third parties and licensed to us. The popularity of the properties we license can significantly affect our sales and profitability. If we produce products based on a particular content release, the success of the movie, TV show or video game has a critical impact on the level of consumer interest in the associated products we are offering. Although we license a wide variety of properties, sales of products tied to major movie franchises have been significant contributors to our business. In addition, the theatrical duration of movie releases has decreased over time and we expect this trend to continue. This may make it increasingly difficult for us to sell products based on such properties or lead our customers to reduce demand for our products to minimize inventory risk. If the

 

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performance of one or more of such movie franchises failed to meet expectations or if there was a shift in consumer tastes away from such franchises generally, our results of operations could be adversely affected. In addition, competition in our industry for access to licensed properties can lessen our ability to secure, maintain, and renew our existing licenses on commercially reasonable terms, if at all, and to attract and retain the talented employees necessary to design, develop and market successful products based on these properties.

Our license agreements usually also require us to pay minimum royalty guarantees, which may in some cases be greater than what we are ultimately able to recoup from actual sales. When our licensing agreements require minimum royalty guarantees, we accrue a royalty liability based on the contractually required percentage, as revenues are earned. In the case that a minimum royalty guarantee is not expected to be met through sales, we will accrue up to the minimum amount required to be paid. For the six months ended June 30, 2017 and 2016 and the years ended December 31, 2016 and 2015, we recorded reserves of $0.2 million, $0.2 million, $0.3 million and $0.1 million, respectively, related to prepaid royalties we estimated would not be met through sales. Acquiring or renewing licenses may require the payment of minimum guaranteed royalties that we consider to be too high to be profitable, which may result in losing licenses that we currently hold when they become available for renewal, or missing business opportunities for new licenses. Additionally, we have no guarantee that any particular property we license will translate into a successful product. Products tied to a particular content release may be developed and released before demand for the underlying content is known. The underperformance of any such product may result in reduced sales and operating profit for us.

Our success depends, in part, on our ability to successfully manage our inventories.

We must maintain sufficient inventory levels to operate our business successfully, but we must also avoid accumulating excess inventory, which increases working capital needs and lowers gross margin. We obtain substantially all of our inventory from third-party manufacturers located outside the United States and must typically order products well in advance of the time these products will be offered for sale to our customers. As a result, it may be difficult to respond to changes in consumer preferences and market conditions, which for pop culture products can change rapidly. If we do not accurately anticipate the popularity of certain products, then we may not have sufficient inventory to meet demand. Alternatively, if demand or future sales do not reach forecasted levels, we could have excess inventory that we may need to hold for a long period of time, write down, sell at prices lower than expected or discard. If we are not successful in managing our inventory, our business, financial condition and results of operations could be adversely affected.

We may also be negatively affected by changes in retailers’ inventory policies and practices. As a result of the desire of retailers to more closely manage inventory levels, there is a growing trend to make purchases on a “just-in-time” basis. This requires us to more closely anticipate demand, and could require us to carry additional inventory. Policies and practices of individual retailers may adversely affect us as well, including those relating to access to and time on shelf space, price demands, payment terms and favoring the products of our competitors. Our retail customers make no binding long-term commitments to us regarding purchase volumes and make all purchases by delivering purchase orders. Any retailer can therefore freely reduce its overall purchase of our products, and reduce the number and variety of our products that it carries and the shelf space allotted for our products. If demand or future sales do not reach forecasted levels, we could have excess inventory that we may need to hold for a long period of time, write down, sell at prices lower than expected or discard. If we are not successful in managing our inventory, our business, financial condition and results of operations could be adversely affected.

 

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An inability to develop and introduce products in a timely and cost-effective manner may damage our business.

Our sales and profitability depend on our ability to bring products to market to meet customer demands and before consumers begin to lose interest in a given property. There is no guarantee that we will be able to manufacture, source and ship new or continuing products in a timely manner and on a cost-effective basis to meet constantly changing consumer demands. This risk is heightened by our customers’ increasingly compressed shipping schedules and the seasonality of our business. Furthermore, our license agreements typically require us to obtain the licensor’s approval of the products we develop under a particular license prior to making any sales, which can have the effect of delaying our product releases. Additionally, for products based on properties in our movie, TV show and video game categories, this risk may also be exacerbated by our need to introduce new products on a timeframe that corresponds with a particular content release. These time constraints may lead our customers to reduce their demand for these products in order to minimize their inventory risk. Moreover, unforeseen delays or difficulties in the development process, significant increases in the planned cost of development, manufacturing delays or changes in anticipated consumer demand for our products and new brands may cause the introduction date for products to be later than anticipated, may reduce or eliminate the profitability of such products or, in some situations, may cause a product or new brand introduction to be discontinued.

If we are unable to obtain, maintain and protect our intellectual property rights, in particular trademarks and copyrights, or if our licensors are unable to maintain and protect their intellectual property rights that we use in connection with our products, our ability to compete could be negatively impacted.

Our intellectual property is a valuable asset of our business. The market for our products depends to a significant extent upon the value associated with our product design, our proprietary brands and the properties we license. Although certain of our intellectual property is registered in the United States and in several of the foreign countries in which we operate, there can be no assurances with respect to the rights associated with such intellectual property in those countries, including our ability to register, use, maintain or defend key trademarks and copyrights. We rely on a combination of trademark, trade dress, copyright and trade secret laws, as well as confidentiality procedures and contractual restrictions, to establish and protect our intellectual property or other proprietary rights. However, these laws, procedures and restrictions provide only limited and uncertain protection and any of our intellectual property rights may be challenged, invalidated, circumvented, infringed or misappropriated, including by counterfeiters and parallel importers. In addition, our intellectual property portfolio in many foreign countries is less extensive than our portfolio in the United States, and the laws of foreign countries, including many emerging markets in which our products are produced or sold, may not protect our intellectual property rights to the same extent as the laws of the United States. The costs required to protect our trademarks and copyrights may be substantial.

In addition, we may fail to apply for, or be unable to obtain, protection for certain aspects of the intellectual property used in or beneficial to our business. Further, we cannot provide assurance that our applications for trademarks, copyrights and other intellectual property rights will be granted, or, if granted, will provide meaningful protection. In addition, third parties have in the past and could in the future bring infringement, invalidity or similar claims with respect to any of our current trademarks and copyrights, or any trademarks or copyrights that we may seek to obtain in the future. Any such claims, whether or not successful, could be extremely costly to defend, divert management’s attention and resources, damage our reputation and brands, and substantially harm our business and results of operations.

In order to protect or enforce our intellectual property and other proprietary rights, or to determine the enforceability, scope or validity of the intellectual or proprietary rights of others, we may initiate

 

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litigation or other proceedings against third parties. Any lawsuits or proceedings that we initiate could be expensive, take significant time and divert management’s attention from other business concerns. Litigation and other proceedings also put our intellectual property at risk of being invalidated, or if not invalidated, may result in the scope of our intellectual property rights being narrowed. In addition, our efforts to try to protect and defend our trademarks and copyrights may be ineffective. Additionally, we may provoke third parties to assert claims against us. We may not prevail in any lawsuits or other proceedings that we initiate and the damages or other remedies awarded, if any, may not be commercially valuable. The occurrence of any of these events may have a material adverse effect on our business, financial condition and results of operations.

In addition, most of our products bear the trademarks and other intellectual property rights of our licensors, and the value of our products is affected by the value of those rights. Our licensors’ ability to maintain and protect their trademarks and other intellectual property rights is subject to risks similar to those described above with respect to our intellectual property. We do not control the protection of the trademarks and other intellectual property rights of our licensors and cannot ensure that our licensors will be able to secure or protect their trademarks and other intellectual property rights. The loss of any of our significant owned or licensed trademarks, copyrights or other intellectual property could have a material adverse effect on our business, financial condition and results of operations. In addition, our licensors may engage in activities or otherwise be subject to negative publicity that could harm their reputation and impair the value of the intellectual property rights we license from them, which could reduce consumer demand for our products and adversely affect our business financial condition and results of operations.

Our success depends on our ability to operate our business without infringing, misappropriating or otherwise violating the trademarks, copyrights and proprietary rights of other parties.

Our commercial success depends at least in part on our ability to operate without infringing, misappropriating or otherwise violating the trademarks, copyrights and other proprietary rights of others. However, we cannot be certain that the conduct of our business does not and will not infringe, misappropriate or otherwise violate such rights. Many companies have employed intellectual property litigation as a way to gain a competitive advantage, and to the extent we gain greater visibility and market exposure as a public company, we may also face a greater risk of being the subject of such litigation. For these and other reasons, third parties may allege that our products or activities, including products we make under license, infringe, misappropriate or otherwise violate their trademark, copyright or other proprietary rights. While we typically receive intellectual property infringement indemnities from our licensors, the indemnities are often limited to third-party copyright infringement claims to the extent arising from our use of the licensed material. Defending against allegations and litigation could be expensive, take significant time, divert management’s attention from other business concerns, and delay getting our products to market. In addition, if we are found to be infringing, misappropriating or otherwise violating third-party trademark, copyright or other proprietary rights, we may need to obtain a license, which may not be available on commercially reasonable terms or at all, or may need to redesign or rebrand our products, which may not be possible. We may also be required to pay substantial damages or be subject to a court order prohibiting us and our customers from selling certain products or engaging in certain activities. Any claims of violating others’ intellectual property, even those without merit, could therefore have a material adverse effect on our business, financial condition and results of operations.

 

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Our success is critically dependent on the efforts and dedication of our officers and other employees, and the loss of one or more key employees, or our inability to attract and retain qualified personnel and maintain our corporate culture, could adversely affect our business.

Our officers and employees are at the heart of all of our efforts. It is their skill, creativity and hard work that drive our success. In particular, our success depends to a significant extent on the continued service and performance of our senior management team, including our Chief Executive Officer, Brian Mariotti. We are dependent on his talents and believe he is integral to our relationships with our licensors and certain of our key retail customers. The loss of any member of our senior management team, or of any other key employees, could impair our ability to execute our business plan and could therefore have a material adverse effect on our business, financial condition and results of operations. We do not currently maintain key man life insurance policies on any member of our senior management team or on our other key employees.

In addition, competition for qualified personnel is intense. We compete with many other potential employers in recruiting, hiring and retaining our senior management team and our many other skilled officers and other employees around the world. Our headquarters is located near Seattle and competition in the Seattle area for qualified personnel, particularly those with technology-related skills and experience, is intense due to the increasing number of technology and e-commerce companies with a large or growing presence in Seattle, some of whom have greater resources than us and may be located closer to the city than we are.

Furthermore, as we continue to grow our business and hire new employees, it may become increasingly challenging to hire people who will maintain our corporate culture. We believe our corporate culture, which fosters speed, teamwork and creativity, is one of our key competitive strengths. As we continue to grow, we may be unable to identify, hire or retain enough people who will maintain our corporate culture, including those in management and other key positions. Our corporate culture could also be adversely affected by the increasingly global distribution of our employees, as well as their increasingly diverse skill sets. If we are unable to maintain the strength of our corporate culture, our competitive ability and our business may be adversely affected.

Our operating results may fluctuate from quarter to quarter and year to year due to the seasonality of our business, as well as due to the timing of new product releases.

The businesses of our retail customers is highly seasonal, with a majority of retail sales occurring during the period from October through December in anticipation of the holiday season. As a consequence, we have experienced moderate seasonality in our business. Approximately 58.7% and 64.6%, of our 2016 and 2015 net sales, respectively, were made in the third and fourth quarters, primarily in the period from August through November, as our customers build up their inventories in anticipation of the holiday season.

This seasonal pattern requires significant use of working capital, mainly to manufacture inventory during the portion of the year prior to the holiday season, and requires accurate forecasting of demand for products during the holiday season in order to avoid losing potential sales of popular products or producing excess inventory of products that are less popular with consumers. In addition, as a result of the seasonal nature of our business, we would be significantly and adversely affected, in a manner disproportionate to the impact on a company with sales spread more evenly throughout the year, by unforeseen events such as a terrorist attack or economic shock that harm the retail environment or consumer buying patterns during our key selling season, or by events such as strikes or port delays that interfere with the shipment of goods during the critical months leading up to the holiday shopping season.

In addition, our results of operations may fluctuate significantly from quarter to quarter or year to year depending on the timing of new product releases and related content releases. Sales of a certain

 

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product or group of products tied to a particular content release can dramatically increase our net sales in any given quarter or year. For example, in 2016, we introduced products based on the video game property “Five Nights at Freddy’s,” sales of which accounted for approximately 15% of 2016 net sales. The timing and mix of products we sell in any given year will depend on various factors, including the timing and popularity of new releases by third-party content providers and our ability to license properties based on these releases.

Our results of operations may also fluctuate as a result of factors such as the delivery schedules set by our customers and holiday shut down schedules set by our third-party manufacturers. Additionally, the rapid growth we have experienced in recent years may have masked the full effects of seasonal factors on our business to date, and as such, these factors may have a greater effect on our results of operations in future periods.

Our use of third-party manufacturers to produce our products presents risks to our business.

We use third-party manufacturers to manufacture all of our products, and have historically concentrated production with a small number of manufacturers and factories. As a result, the loss or unavailability of one of our manufacturers or one of the factories in which our products are produced, even on a temporary basis, could have a negative impact on our business, financial condition and results of operations. This risk is exacerbated by the fact that we do not have long-term contracts with our manufacturers. While we believe our external sources of manufacturing could be shifted, if necessary, to alternative sources of supply, we would require a significant period of time to make such a shift. Because we believe our products represent a significant percentage of the total capacity of each factory in which they are produced, such a shift may require us to establish relationships with new manufacturers, which we may not be able to do on a timely basis, on similar terms, or at all. We may also be required to seek out additional manufacturers in response to increased demand for our products, as our current manufacturers may not have the capacity to increase production. If we were prevented from or delayed in obtaining a material portion of the products produced by our manufacturers, or if we were required to shift manufacturers (assuming we would be able to do so), our sales and profitability could be significantly reduced.

In addition, while we require that our products supplied by third-party manufacturers be produced in compliance with all applicable laws and regulations, and we have the right to monitor compliance by our third-party manufacturers with our manufacturing requirements and to oversee the quality control process at our manufacturers’ factories, there is always a risk that one or more of our third-party manufacturers will not comply with our requirements, and that we will not immediately discover such non-compliance. For example, the Consumer Product Safety Improvement Act of 2008, or the CPSIA, limits the amounts of lead and phthalates that are permissible in certain products and requires that our products be tested to ensure that they do not contain these substances in amounts that exceed permissible levels. In the past, products manufactured by certain of our third-party manufacturers have tested positive for phthalates. Though the amount was not in excess of the amount permissible under the CPSIA, we cannot guarantee that products made by our third-party manufacturers will not in the future contain phthalates in excess of permissible amounts, or will not otherwise violate the CPSIA, other consumer or product safety requirements, or labor or other applicable requirements. Any failure of our third-party manufacturers to comply with such requirements in manufacturing products for us could result in damage to our reputation, harm our brand image and sales of our products and potentially create liability for us.

Monitoring compliance by independent manufacturers is complicated by the fact that expectations of ethical business practices continually evolve, may be substantially more demanding than applicable legal requirements and are driven in part by legal developments and by diverse groups active in publicizing and organizing public responses to perceived ethical shortcomings. Accordingly, we cannot

 

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predict how such expectations might develop in the future and cannot be certain that our manufacturing requirements, even if complied with, would satisfy all parties who are active in monitoring and publicizing perceived shortcomings in labor and other business practices worldwide.

Additionally, the third-party manufacturers that produce most of our products are located in China, Vietnam and Mexico. As a result, we are subject to various risks resulting from our international operations. See “—Our substantial sales and manufacturing operations outside the United States subject us to risks associated with international operations.”

Our operations, including our corporate headquarters, primary distribution facilities and third-party manufacturers, are concentrated in certain geographic regions, which makes us susceptible to adverse conditions in those regions.

Our corporate headquarters and primary distribution facilities are located in Everett, Washington. We also have an additional warehouse facility and offices located in Essex, England. In addition, the factories that produce most of our products are located in China, Vietnam and Mexico. As a result, our business may be more susceptible to adverse conditions in these regions than the operations of more geographically diverse competitors. Such conditions could include, among others, adverse economic and labor conditions, as well as demographic trends. Furthermore, Everett is the location from which most of the products we sell are received, stored and shipped to our customers. We depend heavily on ocean container delivery to receive products from our third-party manufacturers located in Asia and contracted third-party delivery service providers to deliver our products to our Everett distribution facilities. Any disruption to or failures in these delivery services, whether as a result of extreme or severe weather conditions, natural disasters, labor unrest or otherwise, affecting western Washington in particular or the West Coast in general, could significantly disrupt our operations, damage or destroy our equipment and inventory and cause us to incur additional expenses, any of which could have a material adverse effect on our business, financial condition and results of operations. For example, in the fall of 2014, longshoreman work stoppages created a significant backlog of cargo containers at ports. We experienced delays in the shipment of our products as a result of this backlog and were unable to meet our planned inventory allocations for a limited period of time. Although we possess insurance for damage to our property and the disruption of our business, this insurance, and in particular earthquake insurance, which is subject to various limitations and requires large deductibles or co-payments, may not be sufficient to cover all of our potential losses, and may be cancelled by us in the future or otherwise cease to be available to us on reasonable terms or at all. Similarly, natural disasters and other adverse events or conditions affecting east or southeast Asia, where most of our products are produced, could halt or disrupt the production of our products, impair the movement of finished products out of those regions, damage or destroy the molds and tooling necessary to make our products and otherwise cause us to incur additional costs and expenses, any of which could also have a material adverse effect on our business, financial condition and results of operations.

Our substantial sales and manufacturing operations outside the United States subject us to risks associated with international operations.

We operate facilities and sell products in numerous countries outside the United States. Sales to our international customers comprised approximately 28.6% and 19.3% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 18.8% and 23.8% of our 2016 and 2015 net sales, respectively. We expect sales to our international customers to account for an increasing portion of our net sales in future fiscal years, including as a result of the Underground Toys Acquisition and the formation of our subsidiary Funko UK, Ltd., through which we now sell directly to certain of our customers in Europe, the Middle East and Africa. In fact, over time, we expect our international sales and operations to continue to grow both in dollars and as a percentage of our overall business as a result of a key business strategy to expand our presence in emerging and

 

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underserved international markets. Additionally, as discussed above, we use third-party manufacturers located in China, Vietnam and Mexico to produce most of our products. These international sales and manufacturing operations, including operations in emerging markets, are subject to risks that may significantly harm our sales, increase our costs or otherwise damage our business, including:

 

    currency conversion risks and currency fluctuations;

 

    limitations on the repatriation of earnings;

 

    potential challenges to our transfer pricing determinations and other aspects of our cross border transactions, which can materially increase our taxes and other costs of doing business;

 

    political instability, civil unrest and economic instability;

 

    greater difficulty enforcing intellectual property rights and weaker laws protecting such rights;

 

    complications in complying with different laws and regulations in varying jurisdictions, including the U.S. Foreign Corrupt Practices Act, or the FCPA, the U.K. Bribery Act of 2010, similar anti-bribery and anti-corruption laws and local and international environmental, health and safety laws, and in dealing with changes in governmental policies and the evolution of laws and regulations and related enforcement;

 

    difficulties understanding the retail climate, consumer trends, local customs and competitive conditions in foreign markets which may be quite different from the United States;

 

    natural disasters and the greater difficulty and cost in recovering therefrom;

 

    transportation delays and interruptions;

 

    difficulties in moving materials and products from one country to another, including port congestion, strikes and other transportation delays and interruptions;

 

    increased investment and operational complexity to make our products compatible with systems in various countries and compliant with local laws;

 

    changes in international labor costs and other costs of doing business internationally; and

 

    the imposition of and changes in tariffs, quotas, border adjustment taxes (such as are currently being discussed in the United States) or other protectionist measures by any major country or market in which we operate, which could make it significantly more expensive and difficult to import products into that country or market, raise the cost of such products, decrease our sales of such products or decrease our profitability.

Because of the importance of international sales, sourcing and manufacturing to our business, our financial condition and results of operations could be significantly harmed if any of the risks described above were to occur or if we are otherwise unsuccessful in managing our increasingly global business.

The results of the United Kingdom’s referendum on withdrawal from the European Union may have a negative effect on global economic conditions, financial markets and our business.

We make sales to our European customers primarily through our subsidiary Funko UK, Ltd. In June 2016, a majority of voters in the United Kingdom elected to withdraw from the European Union in a national referendum and, in March 2017, the government of the United Kingdom formally initiated the withdrawal process. The terms of any withdrawal are subject to a negotiation period that could last at least two years after the withdrawal process was initiated. These events have created significant uncertainty about the future relationship between the United Kingdom and the European Union, and have given rise to calls for certain regions within the United Kingdom to preserve their place in the European Union by separating from the United Kingdom, as well as for the governments of other European Union member states to consider withdrawal.

 

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These developments, or the perception that any of them could occur, have had and may continue to have a material adverse effect on global economic conditions and the stability of global financial markets, and may significantly reduce global market liquidity and restrict the ability of key market participants to operate in certain financial markets. Asset valuations, currency exchange rates and credit ratings may be especially subject to increased market volatility. Lack of clarity about future United Kingdom laws and regulations as the United Kingdom determines which European Union laws to replace or replicate in the event of a withdrawal, including financial laws and regulations, tax and free trade agreements, intellectual property rights, privacy and data protection, environmental, health and safety laws and regulations and employment laws, could increase costs and depress economic activity. If the United Kingdom and the European Union are unable to negotiate acceptable withdrawal terms or if other European Union member states pursue withdrawal, barrier-free access between the United Kingdom and other European Union member states or among the European economic area overall could be diminished or eliminated. Any of these factors could have a material adverse effect on our business, financial condition and results of operations.

Changes in U.S. tax law may have an adverse effect on our business, financial condition and results of operations.

The Trump administration and members of the U.S. Congress have announced their intention to pursue reform of the U.S. tax system. Proposals under discussion include changes to the U.S. corporate tax system that would reduce U.S. corporate tax rates, change how U.S. multinational corporations are taxed on international earnings and eliminate in whole or in part the deduction for net interest expense. Many aspects of the proposals being discussed are unclear or undeveloped. We are unable to predict which, if any, tax reform proposals will be enacted into law, and what effects any enacted legislation might have on our liability for U.S. corporate tax. However, these potential changes could have an adverse effect on our business, financial condition, and results of operations.

Unanticipated changes in effective tax rates or adverse outcomes resulting from examination of our income or other tax returns could adversely affect our operating results and financial condition.

We are subject to income taxes in the United States, and our tax liabilities will be subject to the allocation of expenses in differing jurisdictions. Our future effective tax rates could be subject to volatility or adversely affected by a number of factors, including:

 

    changes in the valuation of our deferred tax assets and liabilities;

 

    expected timing and amount of the release of any tax valuation allowances;

 

    expiration of, or detrimental changes in, research and development tax credit laws;

 

    tax effects of stock-based compensation;

 

    costs related to intercompany restructurings; or

 

    changes in tax laws, regulations or interpretations thereof.

In addition, we may be subject to audits of our income, sales and other transaction taxes by U.S. federal and state authorities. Outcomes from these audits could have an adverse effect on our operating results and financial condition.

Changes in foreign currency exchange rates can significantly impact our reported financial performance.

Our increasingly global operations mean we produce and buy products, and sell products, in many different markets with many different currencies. As a result, if the exchange rate between the

 

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U.S. dollar and a local currency for an international market in which we have significant sales or operations changes, our financial results as reported in U.S. dollars may be meaningfully impacted even if our business in the local currency is not significantly affected. Similarly, our expenses can be significantly impacted, in U.S. dollar terms, by exchange rates, meaning the profitability of our business in U.S. dollar terms can be negatively impacted by exchange rate movements which we do not control. In recent years, certain key currencies, such as the euro and the British pound sterling, depreciated significantly compared to the U.S. dollar. Depreciation in key currencies during 2017 and beyond may have a significant negative impact on our net sales and earnings as they are reported in U.S. dollars.

Global and regional economic downturns that negatively impact the retail and credit markets, or that otherwise damage the financial health of our retail customers and consumers, can harm our business and financial performance.

We design, manufacture and market a wide variety of consumer products worldwide through sales to our retail customers and directly to consumers. Our financial performance is impacted by the level of discretionary consumer spending in the markets in which we operate. Recessions, credit crises and other economic downturns, or disruptions in credit markets, in the United States and in other markets in which our products are sold can result in lower levels of economic activity, lower employment levels, less consumer disposable income, and lower consumer confidence. The retail industry is subject to volatility, especially during uncertain economic conditions. A downturn in the retail industry in particular may disproportionately affect us because a substantial majority of our net sales are to retail customers. Significant increases in the costs of other products which are required by consumers, such as gasoline, home heating fuels, or groceries, may reduce household spending on our products. Such cost increases and weakened economic conditions may result from any number of factors, including terrorist attacks, wars and other conflicts, natural disasters, increases in critical commodity prices or labor costs, or the prospect of such events. Such a weakened economic and business climate, as well as consumer uncertainty created by such a climate, could harm our sales and profitability. Similarly, reductions in the value of key assets held by consumers, such as their homes or stock market investments, can lower consumer confidence and consumer spending power. Any of these factors can reduce the amount which consumers spend on the purchase of our products. This in turn can reduce our sales and harm our financial performance and profitability.

In addition to experiencing potentially lower sales of our products during times of economic difficulty, in an effort to maintain sales during such times, we may need to reduce the price of our products, increase our promotional spending or sales allowances, or take other steps to encourage retailer and consumer purchases of our products. Those steps may lower our net sales or increase our costs, thereby decreasing our operating margins and lowering our profitability.

Our business depends in large part on our vendors and outsourcers, and our reputation and ability to effectively operate our business may be harmed by actions taken by these third parties outside of our control.

We rely significantly on vendor and outsourcing relationships with third parties for services and systems including manufacturing, transportation, logistics and information technology. Any shortcoming of one of our vendors or outsourcers, particularly one affecting the quality of these services or systems, may be attributed by customers to us, thus damaging our reputation and brand value, and potentially affecting our results of operations. In addition, problems with transitioning these services and systems to, or operating failures with, these vendors and outsourcers could cause delays in product sales, reduce the efficiency of our operations and require significant capital investments to remediate.

 

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We are subject to various government regulations and may be subject to additional regulations in the future, violation of which could subject us to sanctions or otherwise harm our business.

As a company that designs and sells consumer products, we are subject to significant government regulation, including, in the United States, under the Consumer Product Safety Act, the Federal Hazardous Substances Act, the CPSIA and the Flammable Fabrics Act, as well as under product safety and consumer protection statutes in our international markets. There can be no assurance that we will be in compliance, and failure to comply with these acts could result in sanctions which could have a negative impact on our business, financial condition and results of operations. This risk is exacerbated by our reliance on third parties to manufacture our products. See “—Our use of third-party manufacturers to produce our products presents risks to our business.”

Governments and regulatory agencies in the markets in which we manufacture and sell products may enact additional regulations relating to product safety and consumer protection in the future and may also increase the penalties for failing to comply with such regulations. In addition, one or more of our customers might require changes in our products, such as the non-use of certain materials, in the future. Complying with any such additional regulations or requirements could impose increased costs on our business. Similarly, increased penalties for non-compliance could subject us to greater expense in the event any of our products were found to not comply with such regulations. Such increased costs or penalties could harm our business.

As discussed above, our international operations subject us to a host of other governmental regulations throughout the world, including antitrust, customs and tax requirements, anti-boycott regulations, environmental regulations and the FCPA. Complying with these regulations imposes costs on us which can reduce our profitability, and our failure to successfully comply with any such legal requirements could subject us to monetary liabilities and other sanctions that could further harm our business and financial condition. See “—Our substantial sales and manufacturing operations outside the United States subject us to risks associated with international operations.”

We could be subject to future product liability suits or product recalls which could have a significant adverse effect on our financial condition and results of operations.

As a company that designs and sells consumer products, we may be subject to product liability suits or involuntary product recalls, or may choose to voluntarily conduct a product recall. While costs associated with product liability claims and product recalls have generally not been material to our business, the costs associated with future product liability claims or product recalls in any given fiscal year, individually or in the aggregate, could be significant. In addition, any product recall, regardless of the direct costs of the recall, could harm consumer perceptions of our products, subject us to additional government scrutiny, divert development and management resources, adversely affect our business operations and otherwise put us at a competitive disadvantage compared to other companies in our industry, any of which could have a significant adverse effect on our financial condition and results of operations.

Failure to comply with anti-corruption and anti-bribery laws could result in fines, criminal penalties and materially adversely affect our business, financial condition and results of operations.

A significant risk resulting from our global operations is compliance with a wide variety of U.S. federal and state and non-U.S. laws, regulations and policies, including laws related to anti-corruption, anti-bribery and laundering. The FCPA, the U.K. Bribery Act of 2010 and similar anti-corruption and anti-bribery laws in other jurisdictions generally prohibit companies, their officers, directors, employees and third-party intermediaries, business partners, and agents from making improper payments or other

 

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improper things of value to government officials or other persons. There has been an increase in anti-bribery and anti-corruption law enforcement activity in recent years, with more frequent and aggressive investigations and enforcement proceedings by both the U.S. Department of Justice and the SEC, increased enforcement activity by non-U.S. regulators, and increases in criminal and civil proceedings brought against companies and individuals. We operate in parts of the world that are considered high-risk from an anti-bribery and anti-corruption perspective, and strict compliance with anti-bribery and anti-corruption laws may conflict with local customs and practices. We cannot assure you that our internal controls, policies and procedures will protect us from improper conduct by our officers, directors, employees, third-party intermediaries, business partners or agents. To the extent that we learn that any of these parties do not adhere to our internal control policies, we are committed to taking appropriate remedial action. In the event that we believe or have reason to believe that any such party has or may have violated such laws, we may be required to investigate or have outside counsel investigate the relevant facts and circumstances, and detecting, investigating and resolving actual or alleged violations can be expensive and require a significant diversion of time, resources and attention from senior management. Any violation of U.S. federal and state and non-U.S. anti-bribery and anti-corruption laws, regulations and policies could result in substantial fines, sanctions, civil or criminal penalties, and curtailment of operations in the U.S. or other applicable jurisdictions. In addition, actual or alleged violations could damage our reputation and ability to do business. Any of the foregoing could materially adversely affect our business, financial condition and results of operations.

We are subject to governmental economic sanctions requirements and export and import controls that could impair our ability to compete in international markets or subject us to liability if we are not in compliance with applicable laws.

As a U.S. company, we are subject to U.S. export control and economic sanctions laws and regulations, and we are required to export our products in compliance with those laws and regulations, including the U.S. Export Administration Regulations and economic and trade sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control. U.S. economic sanctions and export control laws and regulations prohibit the shipment of specified products and services to countries, governments and persons that are the subject of U.S. sanctions. While we take precautions against doing any business, directly or indirectly, in or with countries, governments and persons subject to U.S. sanctions, such measures may be circumvented. There can be no assurance that we will be in compliance with U.S. export control or economic sanctions laws and regulations in the future. Any such violation could result in criminal or civil fines, penalties or other sanctions and repercussions, including reputational harm that could materially adversely affect our business

We may not realize the anticipated benefits of acquisitions or investments in joint ventures, or those benefits may be delayed or reduced in their realization.

Acquisitions have been a component of our growth and the development of our business, and are likely to continue in the future. Acquisitions can broaden and diversify our brand holdings and product offerings, expand our distribution capabilities and allow us to build additional capabilities and competencies. For example, in the case of the Underground Toys Acquisition, we looked to strengthen our ability to sell our products directly to international retailers, primarily those located in Europe, and reduce our reliance on third-party distributors in Europe and certain other international jurisdictions. However, we cannot be certain that the products and offerings of companies we may acquire, or acquire an interest in, will achieve or maintain popularity with consumers in the future or that any such acquired companies or investments will allow us to more effectively distribute our products, market our products, develop our competencies or to grow our business.

In some cases, we expect that the integration of the companies that we may acquire into our operations will create production, distribution, marketing and other operating synergies which will

 

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produce greater sales growth and profitability and, where applicable, cost savings, operating efficiencies and other advantages. However, we cannot be certain that these synergies, efficiencies and cost savings will be realized. Even if achieved, these benefits may be delayed or reduced in their realization. In other cases, we may acquire or invest in companies that we believe have strong and creative management, in which case we may plan to operate them more autonomously rather than fully integrating them into our operations. We cannot be certain that the key talented individuals at these companies would continue to work for us after the acquisition or that they would develop popular and profitable products, in the future. There is no guarantee that any acquisition or investment we may make will be successful or beneficial or that we will be able to manage the integration process successfully, and acquisitions can consume significant amounts of management attention and other resources, which may negatively impact other aspects of our business.

Our e-commerce business is subject to numerous risks that could have an adverse effect on our business and results of operations.

Although sales through our websites have constituted a small portion of our net sales historically, we expect to continue to grow our e-commerce business in the future. Though sales through our websites generally have higher profit margins and provide us useful insight on the sales impact of certain of our marketing campaigns, further development of our e-commerce business also subjects us to a number of risks. Our online sales may negatively impact our relationships with our retail customers and distributors if they perceive that we are competing with them. In addition, online commerce is subject to increasing regulation by states, the federal government and various foreign jurisdictions. Compliance with these laws will increase our costs of doing business, and our failure to comply with these laws could also subject us to potential fines, claims for damages and other remedies, any of which would have an adverse effect on our business, financial condition and results of operations.

Additionally, some jurisdictions have implemented, or may implement, laws that require remote sellers of goods and services to collect and remit taxes on sales to customers located within the jurisdiction. In particular, the Streamlined Sales Tax Project (an ongoing, multi-year effort by U.S. state and local governments to pursue federal legislation that would require collection and remittance of sales tax by out-of-state sellers) could allow states that meet certain simplification and other criteria to require out-of-state sellers to collect and remit sales taxes on goods purchased by in-state residents. This collection responsibility and the complexity associated with use tax collection, remittance and audit requirements would also increase the costs associated with our e-commerce business.

Furthermore, our e-commerce operations subject us to risks related to the computer systems that operate our websites and related support systems, such as system failures, viruses, computer hackers and similar disruptions. If we are unable to continually add software and hardware, effectively upgrade our systems and network infrastructure and take other steps to improve the efficiency of our systems, system interruptions or delays could occur that adversely affect our operating results and harm our brand. While we depend on our technology vendors to manage “up-time” of the front-end e-commerce store, manage the intake of our orders, and export orders for fulfillment, we could begin to run all or a greater portion of these components ourselves in the future. Any failure on the part of our third-party e-commerce vendors or in our ability to transition third-party services effectively could result in lost sales and harm our brand.

There is a risk that consumer demand for our products online may not generate sufficient sales to make our e-commerce business profitable, as consumer demand for physical products online may be less than in traditional retail sales channels. To the extent our e-commerce business does not generate more net sales than costs, our business, financial condition and results of operations will be adversely affected.

 

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Use of social media may materially and adversely affect our reputation or subject us to fines or other penalties.

We rely to a large extent on our online presence to reach consumers and use third-party social media platforms as marketing tools. For example, we maintain Facebook, Twitter, Instagram and YouTube accounts. As e-commerce and social media platforms continue to rapidly evolve, we must continue to maintain a presence on these platforms and establish presences on new or emerging popular social media platforms. If we are unable to cost-effectively use social media platforms as marketing tools, our ability to acquire new consumers and our financial condition may suffer. Furthermore, as laws and regulations rapidly evolve to govern the use of these platforms, the failure by us, our employees or third parties acting at our direction to abide by applicable laws and regulations in the use of these platforms could subject us to regulatory investigations, class action lawsuits, liability, fines or other penalties and have a material adverse effect on our business, financial condition and result of operations.

Failure to successfully operate our information systems and implement new technology effectively could disrupt our business or reduce our sales or profitability.

We rely extensively on various information technology systems and software applications to manage many aspects of our business, including product development, management of our supply chain, sale and delivery of our products, financial reporting and various other processes and transactions. We are critically dependent on the integrity, security and consistent operations of these systems and related back-up systems. These systems are subject to damage or interruption from power outages, computer and telecommunications failures, computer viruses, malware and other security breaches, catastrophic events such as hurricanes, fires, floods, earthquakes, tornadoes, acts of war or terrorism and usage errors by our employees. The efficient operation and successful growth of our business depends on these information systems, including our ability to operate them effectively and to select and implement adequate disaster recovery systems successfully. The failure of these information systems to perform as designed, our failure to operate them effectively, or a security breach or disruption in operation of our information systems could disrupt our business, require significant capital investments to remediate a problem or subject us to liability.

In addition, we have recently implemented, and expect to continue to invest in and implement, modifications and upgrades to our information technology systems and procedures to support our growth and the development of our e-commerce business. These modifications and upgrades could require substantial investment, and may not improve our profitability at a level that outweighs their costs, or at all. In addition, the process of implementing any new technology systems involves inherent costs and risks, including potential delays and system failures, the potential disruption of our internal control structure, the diversion of management’s time and attention, and the need to re-train or hire new employees, any of which could disrupt our business operations and have a material adverse effect on our business, financial condition and results of operations.

If our electronic data is compromised our business could be significantly harmed.

We maintain significant amounts of data electronically. This data relates to all aspects of our business, including current and future products and entertainment under development, and also contains certain customer, consumer, supplier, partner and employee data. We maintain systems and processes designed to protect the data within our control, but notwithstanding such protective measures, there is a risk of intrusion or tampering that could compromise the integrity and privacy of this data. In addition, we provide confidential and proprietary information to our third-party business partners in certain cases where doing so is necessary or appropriate to conduct our business. While we obtain assurances from those parties that they have systems and processes in place to protect

 

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such data, and where applicable, that they will take steps to assure the protections of such data by third parties, nonetheless those partners may also be subject to data intrusion or otherwise compromise the protection of such data. Any compromise of the confidential data of our customers, consumers, suppliers, partners, employees or ourselves, or failure to prevent or mitigate the loss of or damage to this data through breach of our information technology systems or other means could substantially disrupt our operations, harm our customers, consumers and other business partners, damage our reputation, violate applicable laws and regulations and subject us to additional costs and liabilities and loss of business that could be material.

A failure to comply with laws and regulations relating to privacy and the protection of data relating to individuals may result in negative publicity, claims, investigations and litigation, and adversely affect our financial performance.

We are subject to laws, rules, and regulations in the United States and other countries relating to the collection, use, and security of personal information and data. Such data privacy laws, regulations, and other obligations may require us to change our business practices, and may negatively impact our ability to expand our business and pursue business opportunities. We may incur significant expenses to comply with the laws, regulations and other obligations that apply to us. Additionally, the privacy- and data protection-related laws, rules, and regulations applicable to us are subject to significant change. Several jurisdictions have passed new laws and regulations in this area, and other jurisdictions are considering imposing additional restrictions. These laws and regulations also may be interpreted and enforced inconsistently over time and from jurisdiction to jurisdiction. In addition to government regulation, privacy advocates and industry groups may propose new and different self-regulatory standards that either legally or contractually apply to us. One example of such self-regulatory standards to which we may be contractually bound is the Payment Card Industry Data Security Standard, or PCI DSS. Though we currently use third-party vendors to process and store credit card data in connection with our e-commerce business, to the extent we process or store such data ourselves in the future, we may be subject to various aspects of the PCI DSS, and fines, penalties, and a loss of the ability to process credit card payments could result from any failure to comply with the PCI DSS. Any actual or perceived inability to comply with applicable privacy or data protection laws, regulations, or other obligations could result in significant cost and liability, litigation or governmental investigations, damage our reputation, and adversely affect our business.

Our indebtedness could adversely affect our financial health and competitive position.

As of June 30, 2017, we had $319.1 million of indebtedness outstanding under our Senior Secured Credit Facilities, consisting of $227.0 million outstanding under our Term Loan A Facility (net of unamortized discount of $6.1 million), $41.0 million outstanding under our Term Loan B Facility (net of unamortized discount of $6.0 million) and $51.1 million outstanding under our Revolving Credit Facility. As of June 30, 2017, we also had $20.0 million in aggregate principal amount of promissory notes payable to certain members of FAH, LLC.

In order to service this indebtedness and any additional indebtedness we may incur in the future, we need to generate cash. Our ability to generate cash is subject, to a certain extent, to our ability to successfully execute our business strategy, as well as general economic, financial, competitive, regulatory and other factors beyond our control. We cannot assure you that our business will be able to generate sufficient cash flow from operations or that future borrowings or other financing will be available to us in an amount sufficient to enable us to service our indebtedness and fund our other liquidity needs. To the extent we are required to use our cash flow from operations or the proceeds of any future financing to service our indebtedness instead of funding working capital, capital expenditures or other general corporate purposes, we will be less able to plan for, or react to, changes in our business, industry and in the economy generally. This will place us at a competitive disadvantage compared to our competitors that have less indebtedness.

 

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In addition, the credit agreement governing our Senior Secured Credit Facilities contains, and any agreements evidencing or governing other future indebtedness may contain, certain restrictive covenants that limit our ability, among other things, to engage in certain activities that are in our long-term best interests, including our ability to:

 

    incur additional indebtedness;

 

    incur certain liens;

 

    consolidate, merge or sell or otherwise dispose of our assets;

 

    alter the business conducted by us and our subsidiaries;

 

    make investments, loans, advances, guarantees and acquisitions;

 

    enter into sale and leaseback transactions;

 

    pay dividends or make other distributions on equity interests, or redeem, repurchase or retire equity interests;

 

    enter into transactions with our affiliates;

 

    enter into agreements restricting our subsidiaries’ ability to pay dividends;

 

    issue or sell equity interests or securities convertible into or exchangeable for equity interests;

 

    redeem, repurchase or refinance our other indebtedness; and

 

    amend or modify our governing documents.

The restrictive covenants in the credit agreement governing our Senior Secured Credit Facilities also require us to maintain specified financial ratios. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Description of Senior Secured Credit Facilities.” While we have not previously breached and are not in breach of any of these covenants, there can be no guarantee that we will not breach these covenants in the future. Our ability to comply with these covenants and restrictions may be affected by events and factors beyond our control. Our failure to comply with any of these covenants or restrictions could result in an event of default under our Senior Secured Credit Facilities. This would permit the lending banks under such facilities to take certain actions, including terminating all outstanding commitments and declaring all amounts due under our credit agreement to be immediately due and payable, including all outstanding borrowings, accrued and unpaid interest thereon, and prepayment premiums with respect to such borrowings and any terminated commitments. In addition, the lenders would have the right to proceed against the collateral we granted to them, which includes substantially all of our assets. The occurrence of any of these events could have a material adverse effect on our business, financial condition and results of operations.

We may not be able to secure additional financing on favorable terms, or at all, to meet our future capital needs.

In the future, we may require additional capital to respond to business opportunities, challenges, acquisitions or unforeseen circumstances, and may determine to engage in equity or debt financings or enter into credit facilities or refinance existing indebtedness for other reasons. We may not be able to timely secure additional debt or equity financing on favorable terms, or at all. As discussed above, the credit agreement governing our Senior Secured Credit Facilities contains restrictive covenants that limit our ability to incur additional indebtedness and engage in other capital-raising activities. Any debt financing obtained by us in the future could involve covenants that further restrict our capital raising activities and other financial and operational matters, which may make it more difficult for us to operate our business, obtain additional capital and pursue business opportunities, including potential

 

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acquisitions. Furthermore, if we raise additional funds through the issuance of equity or convertible debt or other equity-linked securities, our existing stockholders could suffer significant dilution. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to grow or support our business and to respond to business challenges could be significantly limited.

Any impairment in the value of our goodwill or other assets would adversely affect our financial condition and results of operations.

We are required, at least annually, or as facts and circumstances warrant, to test goodwill and other assets to determine if impairment has occurred. Impairment may result from any number of factors, including adverse changes in assumptions used for valuation purposes, such as actual or projected net sales growth rates, profitability or discount rates, or other variables. If the testing indicates that impairment has occurred, we are required to record a non-cash impairment charge for the difference between the carrying value of the goodwill or other assets and the implied fair value of the goodwill or the fair value of other assets in the period the determination is made. We cannot always predict the amount and timing of any impairment of assets. Should the value of goodwill or other assets become impaired, it would have an adverse effect on our financial condition and results of operations.

Risks Relating to Our Organizational Structure

ACON will have significant influence over us after the consummation of this offering, including over decisions that require the approval of stockholders, and its interests, along with the interests of our other Continuing Equity Owners, in our business may conflict with yours.

Each share of our Class A common stock and Class B common stock will entitle its holders to one vote per share on all matters presented to our stockholders generally. See “Description of Capital Stock.” As a result, immediately after the consummation of this offering, ACON will hold approximately     % of the combined voting power of our common stock through its ownership of                  shares of our Class A common stock and                  shares of our Class B common stock. Accordingly, ACON will have significant influence over substantially all transactions and other matters submitted to a vote of our stockholders, such as a merger, consolidation, dissolution or sale of all or substantially all of our assets, the issuance or redemption of certain additional equity interests, and the election of directors. This influence may increase the likelihood that we will consummate transactions that are not in the best interests of holders of our Class A common stock or, conversely, prevent the consummation of transactions that are in the best interests of holders of our Class A common stock.

Additionally, the Continuing Equity Owners, who collectively will hold approximately     % of the combined voting power of our common stock immediately after the consummation of this offering, may receive payments from us under the Tax Receivable Agreement in connection with Funko, Inc.’s purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in connection with this offering as described under “Use of Proceeds,” and upon a redemption or exchange of their common units in FAH, LLC, including the issuance of shares of our Class A common stock upon any such redemption or exchange. As a result, the interests of the Continuing Equity Owners may conflict with the interests of holders of our Class A common stock. For example, the Continuing Equity Owners may have different tax positions from us which could influence their decisions regarding whether and when to dispose of assets, whether and when to incur new or refinance existing indebtedness, and whether and when we should terminate the Tax Receivable Agreement and accelerate our obligations thereunder. In addition, the structuring of future transactions may take into consideration tax or other considerations of the Continuing Equity Owners even in situations where no similar considerations are relevant to us. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement” for a discussion of the Tax Receivable Agreement and the related likely benefits to be realized by the Continuing Equity Owners.

 

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In addition, pursuant to the Stockholders Agreement, ACON will have the right to designate certain of our directors, which we refer to as the ACON Directors, which will be three ACON Directors for as long as ACON directly or indirectly, beneficially owns, in the aggregate, 35% or more of our Class A common stock, two ACON Directors for so long as ACON, directly or indirectly, beneficially owns, in the aggregate, less than 35% but at least 25% or more of our Class A common stock and one ACON Director for as long as ACON, directly or indirectly, beneficially owns, in the aggregate, less than 25% but at least 15% or more of our Class A common stock (assuming in each such case that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one for one basis). In addition, Fundamental will also have the right to designate one of our directors, which we refer to as the Fundamental Director, for as long as Fundamental, directly or indirectly, beneficially owns, in the aggregate, 15% or more of our Class A common stock (assuming that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one for one basis). Each of ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, will also agree to vote, or cause to vote, all of their outstanding shares of our Class A common stock and Class B common stock at any annual or special meeting of stockholders in which directors are elected, so as to cause the election of the ACON Directors, the Fundamental Director and Mr. Mariotti for as long as he is our Chief Executive Officer. Additionally, pursuant to the Stockholders Agreement, we shall take all commercially reasonable action to cause (1) the board of directors to be comprised of at least seven directors or such other number of directors as our board of directors may determine; (2) the individuals designated in accordance with the terms of the Stockholders Agreement to be included in the slate of nominees to be elected to the board of directors at the next annual or special meeting of our stockholders at which directors are to be elected and at each annual meeting of our stockholders thereafter at which a director’s term expires; (3) the individuals designated in accordance with the terms of the Stockholders Agreement to fill the applicable vacancies on the board of directors; and (4) an ACON Director to be the chairperson of the board of directors (as defined in the amended and restated bylaws).

In addition, the Stockholders Agreement provides that for as long as the ACON Related Parties beneficially own, directly or indirectly, in the aggregate, 30% or more of all issued and outstanding shares of our Class A common stock (assuming that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one for one basis), we will not take, and will cause our subsidiaries not to take, certain actions or enter into certain transactions (whether by merger, consolidation or otherwise) without the prior written approval of ACON and each of its affiliated funds that will hold common units of FAH, LLC or our Class A common stock after the consummation of this offering, including:

 

    entering into any transaction or series of related transactions in which any person or group (other than the ACON Related Parties and any group that includes the ACON Related Parties, Fundamental (or certain of its affiliates or permitted transferees) or Mr. Mariotti) acquires, directly or indirectly, in excess of 50% of the then outstanding shares of any class of our or our subsidiaries’ capital stock, or following which any such person or group has the direct or indirect power to elect a majority of the members of our board of directors or to replace Funko, Inc. as the sole manager of FAH, LLC (or to add another person as co-manager of FAH, LLC);

 

    the reorganization, recapitalization, voluntary bankruptcy, liquidation, dissolution or winding up of us or any of our subsidiaries;

 

    the sale, lease or exchange of all or substantially all of our and our subsidiaries’ property and assets;

 

    the resignation, replacement or removal of Funko, Inc. as the sole manager of FAH, LLC, or the appointment of any additional person as a manager of FAH, LLC;

 

   

any acquisition or disposition of our or any of our subsidiaries’ assets for aggregate consideration in excess of $       in a single transaction or series of related transactions (other

 

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than transactions solely between or among us and our direct or indirect wholly owned subsidiaries);

 

    the creation of a new class or series of capital stock or other equity securities of us or any of our subsidiaries;

 

    the issuance of additional shares of Class A common stock, Class B common stock, preferred stock or other equity securities of us or any of our subsidiaries other than (i) under any stock option or other equity compensation plan approved by our board of directors or the compensation committee thereof, (ii) pursuant to the exercise or conversion of any options, warrants or other securities existing as of the date of the Stockholders Agreement and (iii) in connection with any redemption of common units of FAH, LLC pursuant to the FAH LLC Agreement;

 

    any amendment or modification of our or any of our subsidiaries’ organizational documents, other than the FAH LLC Agreement, which shall be subject to amendment or modification solely in accordance with the terms set forth herein; and

 

    any increase or decrease of the size of our board of directors.

We are a “controlled company” within the meaning of the Nasdaq rules and, as a result, will qualify for, and intend to rely on, exemptions from certain corporate governance requirements. You will not have the same protections afforded to stockholders of companies that are subject to such corporate governance requirements.

Pursuant to the terms of the Stockholders Agreement, ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, after the consummation of this offering will, in the aggregate, have more than 50% of the voting power for the election of directors, and, as a result, we will be considered a “controlled company” for the purposes of the Nasdaq rules. As such, we will qualify for, and intend to rely on, exemptions from certain corporate governance requirements, including the requirements to have a majority of independent directors on our board of directors, an entirely independent nominating and corporate governance committee, an entirely independent compensation committee or to perform annual performance evaluation of the nominating and corporate governance and compensation committees.

The corporate governance requirements and specifically the independence standards are intended to ensure that directors who are considered independent are free of any conflicting interest that could influence their actions as directors. Following this offering, we intend to use certain exemptions afforded to a “controlled company.” As a result, we will not be subject to certain corporate governance requirements, including that a majority of our board of directors consists of “independent directors,” as defined under the Nasdaq rules. In addition, we will not be required to have a nominating and corporate governance committee or compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities or to conduct annual performance evaluations of the nominating and corporate governance and compensation committees. See “Management.” Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of the Nasdaq rules.

Our amended and restated certificate of incorporation provides that the doctrine of “corporate opportunity” will not apply with respect to any director or stockholder who is not employed by us or our subsidiaries.

The doctrine of corporate opportunity generally provides that a corporate fiduciary may not develop an opportunity using corporate resources, acquire an interest adverse to that of the corporation or acquire property that is reasonably incident to the present or prospective business of the

 

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corporation or in which the corporation has a present or expectancy interest, unless that opportunity is first presented to the corporation and the corporation chooses not to pursue that opportunity. The doctrine of corporate opportunity is intended to preclude officers or directors or other fiduciaries from personally benefiting from opportunities that belong to the corporation. Our amended and restated certificate of incorporation, which will be in effect upon the consummation of this offering, will provide that the doctrine of “corporate opportunity” will not apply with respect to any director or stockholder who is not employed by us or our subsidiaries. Any director or stockholder who is not employed by us or our subsidiaries will therefore have no duty to communicate or present corporate opportunities to us, and will have the right to either hold any corporate opportunity for their (and their affiliates’) own account and benefit or to recommend, assign or otherwise transfer such corporate opportunity to persons other than us, including to any director or stockholder who is not employed by us or our subsidiaries.

As a result, certain of our stockholders, directors and their respective affiliates will not be prohibited from operating or investing in competing businesses. We therefore may find ourselves in competition with certain of our stockholders, directors or their respective affiliates, and we may not have knowledge of, or be able to pursue, transactions that could potentially be beneficial to us. Accordingly, we may lose a corporate opportunity or suffer competitive harm, which could negatively impact our business or prospects.

Our principal asset after the consummation of this offering will consist of our interest in FAH, LLC, and accordingly, we will depend on distributions from FAH, LLC to pay taxes and expenses, including payments under the Tax Receivable Agreement. FAH, LLC’s ability to make such distributions may be subject to various limitations and restrictions.

Upon consummation of this offering, we will be a holding company and will have no material assets other than our ownership of              common units of FAH, LLC, representing approximately     % of the economic interest in FAH, LLC (or              common units of FAH, LLC, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock). We will have no independent means of generating revenue or cash flow, and our ability to pay dividends in the future, if any, will be dependent upon the financial results and cash flows of FAH, LLC and its subsidiaries and distributions we receive from FAH, LLC. There can be no assurance that our subsidiaries will generate sufficient cash flow to dividend or distribute funds to us or that applicable local law and contractual restrictions, including negative covenants in our debt instruments, will permit such dividends or distributions.

FAH, LLC will be treated as a partnership for U.S. federal income tax purposes and, as such, generally will not be subject to any entity-level U.S. federal income tax. Instead, taxable income will be allocated to holders of its common units, including us. As a result, we will incur income taxes on our allocable share of any net taxable income of FAH, LLC. Under the terms of the FAH LLC Agreement, FAH, LLC will be obligated to make tax distributions to its members, including us, except to the extent such distributions would render FAH, LLC insolvent or are otherwise prohibited by law or any limitations or restrictions in our debt agreements. The amount of such tax distribution will be calculated based on the highest combined federal, state and local tax rate that may potentially apply to any one of FAH, LLC’s members, regardless of the actual final tax liability of any such member. As a result of the foregoing, FAH, LLC may be obligated to make tax distributions in excess of some or all of its members’ actual tax liability, which could reduce its cash available for its business operations. In addition to tax expenses, we will also incur expenses related to our operations, our interests in FAH, LLC and related party agreements, including payment obligations under the Tax Receivable Agreement and expenses and costs of being a public company, all of which could be significant. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement.” We intend, as its managing member, to cause FAH, LLC to make distributions in an amount sufficient to allow us to pay our taxes and operating expenses, including any ordinary course payments due under the Tax

 

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Receivable Agreement. However, FAH, LLC’s ability to make such distributions may be subject to various limitations and restrictions including, but not limited to, restrictions on distributions that would either violate any contract or agreement to which FAH, LLC is then a party, including debt agreements, or any applicable law, or that would have the effect of rendering FAH, LLC insolvent. If FAH, LLC does not have sufficient funds to pay tax distributions or other liabilities to fund our operations, we may have to borrow funds, which could materially adversely affect our liquidity and financial condition and subject us to various restrictions imposed by any such lenders. To the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, such payments will be deferred and will accrue interest until paid; provided, however, that nonpayment for a specified period may constitute a material breach of a material obligation under the Tax Receivable Agreement and therefore may accelerate payments due under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement.” If FAH, LLC does not have sufficient funds to make distributions, our ability to declare and pay cash dividends may also be restricted or impaired. See “—Risks Relating to This Offering and Ownership of Our Class A Common Stock.”

Our Tax Receivable Agreement with the Continuing Equity Owners requires us to make cash payments to them in respect of certain tax benefits to which we may become entitled, the amounts that we may be required to pay could be significant, and we may not realize such tax benefits.

In connection with the consummation of this offering, we will enter into a Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners. Pursuant to the Tax Receivable Agreement, we will be required to make cash payments to the Continuing Equity Owners equal to 85% of the tax benefits, if any, that we actually realize, or in some circumstances are deemed to realize as a result of (1) increases in tax basis resulting from Funko, Inc.’s purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in connection with this offering, as described under “Use of Proceeds,” and any future redemptions funded by Funko, Inc. or exchanges (or deemed exchanges in certain circumstances) of common units for Class A common stock described under “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Common Unit Redemption Right,” and (2) certain additional tax benefits attributable to payments under the Tax Receivable Agreement. The amount of the cash payments that we may be required to make under the Tax Receivable Agreement could be significant. Payments under the Tax Receivable Agreement will be based on the tax reporting positions that we determine, which tax reporting positions are subject to challenge by taxing authorities. Payments made under the Tax Receivable Agreement will not be returned upon a successful challenge by a taxing authority to our reporting positions. Any payments made by us to the Continuing Equity Owners under the Tax Receivable Agreement will generally reduce the amount of overall cash flow that might have otherwise been available to us. To the extent that we are unable to make timely payments under the Tax Receivable Agreement for any reason, the unpaid amounts will be deferred and will accrue interest until paid by us. Nonpayment for a specified period may constitute a material breach of a material obligation under the Tax Receivable Agreement and therefore may accelerate payments due under the Tax Receivable Agreement. Furthermore, our future obligation to make payments under the Tax Receivable Agreement could make us a less attractive target for an acquisition, particularly in the case of an acquirer that cannot use some or all of the tax benefits that may be deemed realized under the Tax Receivable Agreement upon a change of control. The payments under the Tax Receivable Agreement are also not conditioned upon the Continuing Equity Owners maintaining a continued ownership interest in FAH, LLC. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement” for a discussion of the Tax Receivable Agreement and the related likely benefits to be realized by the Continuing Equity Owners.

 

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The amounts that we may be required to pay to the Continuing Equity Owners under the Tax Receivable Agreement may be accelerated in certain circumstances and may also significantly exceed the actual tax benefits that we ultimately realize.

The Tax Receivable Agreement provides that if certain mergers, asset sales, other forms of business combination, or other changes of control were to occur, if we materially breach any of our material obligations under the Tax Receivable Agreement or if, at any time, we elect an early termination of the Tax Receivable Agreement, then the Tax Receivable Agreement will terminate and our obligations, or our successor’s obligations, to make future payments under the Tax Receivable Agreement would accelerate and become immediately due and payable. In those circumstances members of FAH, LLC would be deemed to exchange any remaining outstanding common units of FAH, LLC for Class A common stock and would generally be entitled to payments under the Tax Receivable Agreement resulting from such deemed exchange. The amount due and payable in those circumstances is determined based on certain assumptions, including an assumption that we would have sufficient taxable income to fully use all potential future tax benefits that are subject to the Tax Receivable Agreement. We may need to incur debt to finance payments under the Tax Receivable Agreement to the extent our cash resources are insufficient to meet our obligations under the Tax Receivable Agreement as a result of timing discrepancies or otherwise.

As a result of the foregoing, we would be required to make an immediate cash payment equal to the present value of the anticipated future tax benefits that are the subject of the Tax Receivable Agreement, which payment may be made significantly in advance of the actual realization, if any, of such future tax benefits. We also could be required to make cash payments to the Continuing Equity Owners that are greater than the specified percentage of the actual benefits we ultimately realize in respect of the tax benefits that are subject to the Tax Receivable Agreement. Our obligations under the Tax Receivable Agreement could have a substantial negative impact on our liquidity and could have the effect of delaying, deferring or preventing certain mergers, asset sales, other forms of business combination, or other changes of control. There can be no assurance that we will be able to finance our obligations under the Tax Receivable Agreement.

We will not be reimbursed for any payments made to the Continuing Equity Owners under the Tax Receivable Agreement in the event that any tax benefits are disallowed.

We will not be reimbursed for any cash payments previously made to the Continuing Equity Owners pursuant to the Tax Receivable Agreement if any tax benefits initially claimed by us are subsequently challenged by a taxing authority and are ultimately disallowed. Instead, any excess cash payments made by us to a Continuing Equity Owner will be netted against any future cash payments that we might otherwise be required to make under the terms of the Tax Receivable Agreement. However, a challenge to any tax benefits initially claimed by us may not arise for a number of years following the initial time of such payment or, even if challenged early, such excess cash payment may be greater than the amount of future cash payments that we might otherwise be required to make under the terms of the Tax Receivable Agreement and, as a result, there might not be future cash payments from which to net against. The applicable U.S. federal income tax rules are complex and factual in nature, and there can be no assurance that the IRS or a court will not disagree with our tax reporting positions. As a result, it is possible that we could make cash payments under the Tax Receivable Agreement that are substantially greater than our actual cash tax savings. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement” for a discussion of the Tax Receivable Agreement and the related likely benefits to be realized by the Continuing Equity Owners.

 

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If we were deemed to be an investment company under the Investment Company Act of 1940, as amended, or the 1940 Act, as a result of our ownership of FAH, LLC, applicable restrictions could make it impractical for us to continue our business as contemplated and could have a material adverse effect on our business, financial condition and results of operations.

Under Sections 3(a)(1)(A) and (C) of the 1940 Act, a company generally will be deemed to be an “investment company” for purposes of the 1940 Act if (1) it is, or holds itself out as being, engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities or (2) it engages, or proposes to engage, in the business of investing, reinvesting, owning, holding or trading in securities and it owns or proposes to acquire investment securities having a value exceeding 40% of the value of its total assets (exclusive of U.S. government securities and cash items) on an unconsolidated basis. We do not believe that we are an “investment company,” as such term is defined in either of those sections of the 1940 Act.

As the sole managing member of FAH, LLC, we will control and operate FAH, LLC. On that basis, we believe that our interest in FAH, LLC is not an “investment security” as that term is used in the 1940 Act. However, if we were to cease participation in the management of FAH, LLC, our interest in FAH, LLC could be deemed an “investment security” for purposes of the 1940 Act.

We and FAH, LLC intend to conduct our operations so that we will not be deemed an investment company. However, if we were to be deemed an investment company, restrictions imposed by the 1940 Act, including limitations on our capital structure and our ability to transact with affiliates, could make it impractical for us to continue our business as contemplated and could have a material adverse effect on our business, financial condition and results of operations.

Our organizational structure, including the Tax Receivable Agreement, confers certain benefits upon the Continuing Equity Owners that will not benefit Class A common stockholders to the same extent as it will benefit the Continuing Equity Owners.

Our organizational structure, including the Tax Receivable Agreement, confers certain benefits upon the Continuing Equity Owners that will not benefit the holders of our Class A common stock to the same extent as it will benefit such Continuing Equity Owners. We will enter into the Tax Receivable Agreement with FAH, LLC and such Continuing Equity Owners and it will provide for the payment by Funko, Inc. to the Continuing Equity Owners of 85% of the amount of tax benefits, if any, that Funko, Inc. actually realizes, or in some circumstances is deemed to realize, as a result of (1) increases in tax basis resulting from Funko, Inc.’s purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in connection with this offering, as described under “Use of Proceeds,” and any future redemptions funded by Funko, Inc. or exchanges (or deemed exchanges in certain circumstances) of common units for Class A common stock described under “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Common Unit Redemption Right,” and (2) certain additional tax benefits attributable to payments under the Tax Receivable Agreement. This and other aspects of our organizational structure may adversely impact the future trading market for the Class A common stock.

Risks Relating to This Offering and Ownership of Our Class A Common Stock

Immediately following the consummation of this offering, the Continuing Equity Owners will own common units in FAH, LLC, and the Continuing Equity Owners will have the right to redeem their common units in FAH, LLC pursuant to the terms of the FAH LLC Agreement for shares of Class A common stock or cash.

After this offering, we will have an aggregate of              shares of Class A common stock authorized but unissued (or                  if the underwriters exercise in full their option to purchase

 

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additional shares of Class A common stock), including approximately              shares of Class A common stock issuable, at our election, upon redemption of FAH, LLC common units that will be held by the Continuing Equity Owners. FAH, LLC will enter into the FAH LLC Agreement, and subject to certain restrictions set forth in such agreement and as described elsewhere in this prospectus, the Continuing Equity Owners will be entitled to have their common units redeemed from time to time at each of their options (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.” We also intend to enter into a Registration Rights Agreement pursuant to which the shares of Class A common stock issued to certain of the Continuing Equity Owners (including each of our executive officers) upon such redemption and the shares of Class A common stock issued to the Former Equity Owners in connection with the Transactions will be eligible for resale, subject to certain limitations set forth in the Registration Rights Agreement. See “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

We cannot predict the size of future issuances of our Class A common stock or the effect, if any, that future issuances and sales of shares of our Class A common stock may have on the market price of our Class A common stock. Sales or distributions of substantial amounts of our Class A common stock, including shares issued in connection with an acquisition, or the perception that such sales or distributions could occur, may cause the market price of our Class A common stock to decline.

You may be diluted by future issuances of additional Class A common stock or common units in connection with our incentive plans, acquisitions or otherwise; future sales of such shares in the public market, or the expectations that such sales may occur, could lower our stock price.

Our amended and restated certificate of incorporation authorizes us to issue shares of our Class A common stock and options, rights, warrants and appreciation rights relating to our Class A common stock for the consideration and on the terms and conditions established by our board of directors in its sole discretion, whether in connection with acquisitions or otherwise. In addition, we, FAH, LLC and the Continuing Equity Owners will be party to the FAH LLC Agreement under which the Continuing Equity Owners (or certain permitted transferees thereof) will have the right (subject to the terms of the FAH LLC Agreement) to have their common units redeemed from time to time at each of their options (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) by FAH, LLC in exchange for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume-weighted average market price of one share of Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.” The market price of shares of our Class A common stock could decline as a result of these redemptions or exchanges or the perception that a redemption or exchange could occur. These redemptions or exchanges, or the possibility that these redemptions or exchanges may occur, also might make it more difficult for holders of our Class A common stock to sell such stock in the future at a time and at a price that they deem appropriate.

 

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We have reserved for issuance under our 2017 Plan              shares of Class A common stock, including              shares of Class A common stock issuable pursuant to              stock options and              restricted stock units granted to certain of our directors and certain of our employees in connection with this offering as described under the captions “Executive Compensation—Executive Compensation Arrangements—Director Compensation” and “Executive Compensation—Equity Compensation Plans—2017 Incentive Award Plan.” Any shares of Class A common stock that we issue, including under our 2017 Plan or other equity incentive plans that we may adopt in the future, would dilute the percentage ownership held by the investors who purchase Class A common stock in this offering.

We, our officers and directors, the Original Equity Owners and the selling stockholders, subject to certain exceptions, will agree that, without the prior written consent of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, on behalf of the underwriters, we and they will not, during the period ending 180 days after the date of this prospectus: (1) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Class A common stock or any securities convertible into, exchangeable for or that represent the right to receive shares of Class A common stock; (2) file any registration statement with the SEC relating to the offering of any shares of Class A common stock or any securities convertible into or exercisable or exchangeable for Class A common stock; or (3) enter into any swap or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Class A common stock, subject to certain exceptions. Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their sole discretion, may release the Class A common stock and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice. See “Underwriting.”

The market price of our Class A common stock may decline significantly when the restrictions on resale by our existing stockholders lapse. A decline in the market price of our Class A common stock might impede our ability to raise capital through the issuance of additional shares of Class A common stock or other equity securities.

In connection with the completion of this offering, we intend to enter into a Registration Rights Agreement with certain of the Original Equity Owners (including each of our executive officers). Any sales in connection with the Registration Rights Agreement, or the prospect of any such sales, could materially impact the market price of our Class A common stock and could impair our ability to raise capital through future sales of equity securities. For a further description of our Registration Rights Agreement, see “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

See “Shares Eligible for Future Sale” for a more detailed description of the restrictions on selling shares of our Class A common stock after this offering.

In the future, we may also issue additional securities if we need to raise capital, including, but not limited to, in connection with acquisitions, which could constitute a material portion of our then-outstanding shares of Class A common stock.

Our Class A common stock price may be volatile or may decline regardless of our operating performance and you may not be able to resell your shares at or above the initial public offering price.

Prior to this offering, there has not been a public trading market for shares of our Class A common stock. It is possible that after this offering an active trading market will not develop or continue or, if developed, that any market will be sustained, which could make it difficult for you to sell your shares of Class A common stock at an attractive price or at all. The initial public offering price of our

 

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Class A common stock will be determined by negotiations among us, the selling stockholders and the representatives of the underwriters based upon a number of factors and may not be indicative of prices that will prevail in the open market following the consummation of this offering. See “Underwriting.” Consequently, you may not be able to sell our shares of Class A common stock at prices equal to or greater than the price you paid in this offering.

Volatility in the market price of our Class A common stock may prevent you from being able to sell your shares at or above the price you paid for them. Many factors, which are outside our control, may cause the market price of our Class A common stock to fluctuate significantly, including those described elsewhere in this “Risk Factors” section and this prospectus, as well as the following:

 

    our operating and financial performance and prospects;

 

    our quarterly or annual earnings or those of other companies in our industry compared to market expectations;

 

    conditions that impact demand for our products;

 

    future announcements concerning our business, our customers’ businesses or our competitors’ businesses;

 

    the public’s reaction to our press releases, other public announcements and filings with the SEC;

 

    the market’s reaction to our reduced disclosure and other requirements as a result of being an “emerging growth company” under the JOBS Act;

 

    the size of our public float;

 

    coverage by or changes in financial estimates by securities analysts or failure to meet their expectations;

 

    market and industry perception of our success, or lack thereof, in pursuing our growth strategy;

 

    strategic actions by us or our competitors, such as acquisitions or restructurings;

 

    changes in laws or regulations which adversely affect our industry, our licensors or us;

 

    changes in accounting standards, policies, guidance, interpretations or principles;

 

    changes in senior management or key personnel;

 

    issuances, exchanges or sales, or expected issuances, exchanges or sales of our capital stock;

 

    changes in our dividend policy;

 

    adverse resolution of new or pending litigation against us; and

 

    changes in general market, economic and political conditions in the United States and global economies or financial markets, including those resulting from natural disasters, terrorist attacks, acts of war and responses to such events.

As a result, volatility in the market price of our Class A common stock may prevent investors from being able to sell their Class A common stock at or above the initial public offering price or at all. These broad market and industry factors may materially reduce the market price of our Class A common stock, regardless of our operating performance. In addition, price volatility may be greater if the public float and trading volume of our Class A common stock is low. As a result, you may suffer a loss on your investment.

We do not intend to pay dividends on our Class A common stock for the foreseeable future.

We currently intend to retain all available funds and any future earnings to fund the development and growth of our business and to repay indebtedness. As a result, we do not anticipate declaring or

 

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paying any cash dividends on our Class A common stock in the foreseeable future. Any decision to declare and pay dividends in the future will be made at the discretion of our board of directors and will depend on, among other things, our business prospects, results of operations, financial condition, cash requirements and availability, industry trends and other factors that our board of directors may deem relevant. Any such decision will also be subject to compliance with contractual restrictions and covenants in the agreements governing our current and future indebtedness. Our Senior Secured Credit Facilities contain certain covenants that restrict the ability of FAH, LLC and its subsidiaries to pay dividends or make distributions. See “Description of Certain Indebtedness.” Because we are a holding company, our ability to pay dividends on our Class A common stock depends on our receipt of cash distributions from FAH, LLC and, through FAH, LLC, cash distributions and dividends from our other direct and indirect wholly owned subsidiaries. In addition, we may incur additional indebtedness, the terms of which may further restrict or prevent us from paying dividends on our Class A common stock. As a result, you may have to sell some or all of your Class A common stock after price appreciation in order to generate cash flow from your investment, which you may not be able to do. Our inability or decision not to pay dividends, particularly when others in our industry have elected to do so, could also adversely affect the market price of our Class A common stock.

Delaware law and certain provisions in our amended and restated certificate of incorporation and our amended and restated bylaws may prevent efforts by our stockholders to change the direction or management of our company.

We are a Delaware corporation, and the anti-takeover provisions of Delaware law impose various impediments to the ability of a third party to acquire control of us, even if a change of control would be beneficial to our existing stockholders. In addition, our amended and restated certificate of incorporation and our amended and restated bylaws contain provisions that may make the acquisition of our company more difficult without the approval of our board of directors, including, but not limited to, the following:

 

    our board of directors is classified into three classes, each of which serves for a staggered three-year term;

 

    only the chairperson of our board of directors or a majority of our board of directors may call special meetings of our stockholders, except that at such time as ACON, certain of its affiliates and their permitted transferees, which we collectively refer to as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, 35% or more of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, the holders of a majority in voting power of the outstanding shares of our capital stock may also call special meetings of our stockholders;

 

    we have authorized undesignated preferred stock, the terms of which may be established and shares of which may be issued without stockholder approval;

 

   

any action required or permitted to be taken by our stockholders at an annual meeting or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a written consent is signed by the holders of our outstanding shares of common stock representing not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all outstanding shares of common stock entitled to vote thereon were present and voted, provided that at such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, less than 35% of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, any

 

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action required or permitted to be taken by our stockholders at an annual meeting or special meeting of stockholders may not be taken by written consent in lieu of a meeting;

 

    our amended and restated certificate of incorporation may be amended or repealed by the affirmative vote of a majority of the votes which all our stockholders would be eligible to cast in an election of directors and our amended and restated bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of a majority of the votes which all our stockholders would be eligible to cast in an election of directors, provided that at such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, less than 35% of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, our amended and restated certificate of incorporation and our amended and restated bylaws may be amended or repealed by the affirmative vote of the holders of at least 66 2 / 3 % of the votes which all our stockholders would be entitled to cast in any annual election of directors and our amended and restated bylaws may also be amended or repealed by a majority vote of our board of directors;

 

    we require advance notice and duration of ownership requirements for stockholder proposals; and

 

    we have opted out of Section 203 of the Delaware General Corporation Law of the State of Delaware, or the DGCL, however, our amended and restated certificate of incorporation will contain provisions that are similar to Section 203 of the DGCL (except with respect to ACON and Fundamental and any of their respective affiliates and any of their respective direct or indirect transferees of Class B common stock). See “Description of Capital Stock—Anti-Takeover Provisions—Section 203 of the DGCL.”

These provisions could discourage, delay or prevent a transaction involving a change in control of our company. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and cause us to take other corporate actions you desire, including actions that you may deem advantageous, or negatively affect the trading price of our Class A common stock. In addition, because our board of directors is responsible for appointing the members of our management team, these provisions could in turn affect any attempt by our stockholders to replace current members of our management team.

Please see “—Risks Relating to Our Organizational Structure—ACON will have significant influence over us after the consummation of this offering, including over decisions that require the approval of stockholders, and its interests, along with the interests of our other Continuing Equity Owners, in our business may conflict with yours.”

Our amended and restated certificate of incorporation will provide, subject to certain exceptions, that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for certain stockholder litigation matters, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, employees or stockholders.

Our amended and restated certificate of incorporation will provide, subject to limited exceptions, that the Court of Chancery of the State of Delaware will, to the fullest extent permitted by law, be the sole and exclusive forum for (1) any derivative action or proceeding brought on our behalf; (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders; (3) any action asserting a claim against us, any director or our officers and employees arising pursuant to any provision of the DGCL, our amended and restated

 

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certificate of incorporation or our amended and restated bylaws, or as to which the DGCL confers exclusive jurisdiction on the Court of Chancery; or (4) any action asserting a claim against us, any director or our officers or employees that is governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and to have consented to the provisions of our amended and restated certificate of incorporation described above. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our directors, officers, other employees or stockholders which may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the choice of forum provision that will be contained in our amended and restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could materially adversely affect our business, financial condition and results of operations.

We may issue shares of preferred stock in the future, which could make it difficult for another company to acquire us or could otherwise adversely affect holders of our Class A common stock, which could depress the price of our Class A common stock.

Our amended and restated certificate of incorporation will authorize us to issue one or more series of preferred stock. Our board of directors will have the authority to determine the preferences, limitations and relative rights of the shares of preferred stock and to fix the number of shares constituting any series and the designation of such series, without any further vote or action by our stockholders. Our preferred stock could be issued with voting, liquidation, dividend and other rights superior to the rights of our Class A common stock. The potential issuance of preferred stock may delay or prevent a change in control of us, discouraging bids for our Class A common stock at a premium to the market price, and materially and adversely affect the market price and the voting and other rights of the holders of our Class A common stock.

Taking advantage of the reduced disclosure requirements applicable to “emerging growth companies” may make our Class A common stock less attractive to investors.

The JOBS Act provides that, for so long as a company qualifies as an “emerging growth company,” it will, among other things:

 

    be required to initially have only two years of audited financial statements and only two years of related selected financial data and Management’s Discussion and Analysis of Financial Condition and Results of Operations disclosure;

 

    be exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act of 2002, as amended, or the Sarbanes-Oxley Act, requiring that its independent registered public accounting firm provide an attestation report on the effectiveness of its internal control over financial reporting;

 

    be exempt from the “say on pay” and “say on golden parachute” advisory vote requirements of the Dodd-Frank Wall Street Reform and Customer Protection Act, or the Dodd-Frank Act;

 

    be exempt from certain disclosure requirements of the Dodd-Frank Act relating to compensation of its executive officers and be permitted to omit the detailed compensation discussion and analysis from the proxy statements and reports it files under the Securities Exchange Act of 1934, as amended, or the Exchange Act; and

 

    be exempt from any rules that may be adopted by the Public Company Accounting Oversight Board requiring mandatory audit firm rotations or a supplement to the auditor’s report on our financial statements.

 

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We currently intend to take advantage of each of the exemptions described above. We have irrevocably elected not to take advantage of the extension of time to comply with new or revised financial accounting standards available under Section 107(b) of the JOBS Act. We could be an emerging growth company for up to five years after this offering. We cannot predict if investors will find our Class A common stock less attractive if we elect to rely on these exemptions, or if taking advantage of these exemptions would result in less active trading or more volatility in the price of our Class A common stock.

The obligations associated with being a public company will require significant resources and management attention, which may divert from our business operations.

As a result of this offering, we will become subject to the reporting requirements of the Exchange Act and the Sarbanes-Oxley Act. The Exchange Act requires that we file annual, quarterly and current reports with respect to our business and financial condition. The Sarbanes-Oxley Act requires, among other things, that we establish and maintain effective internal control over financial reporting. As a result, we will incur significant legal, accounting and other expenses that we did not previously incur. Additionally, most of our management team, including our Chief Executive Officer and Chief Financial Officer, have never managed a publicly traded company, and as a result, do not have experience in complying with the increasingly complex and changing legal and regulatory landscape in which public companies operate. Furthermore, while certain members of our board of directors have been officers and other employees of public companies, only one of our directors has served on the board of directors of a public company. Our entire management team and many of our other employees will need to devote substantial time to compliance, and may not effectively or efficiently manage our transition into a public company.

In addition, the need to establish the corporate infrastructure demanded of a public company may also divert management’s attention from implementing our business strategy, which could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal control over financial reporting, including information technology controls, and procedures for financial reporting and accounting systems to meet our reporting obligations as a public company. However, the measures we take may not be sufficient to satisfy our obligations as a public company. If we do not continue to develop and implement the right processes and tools to manage our changing enterprise and maintain our culture, our ability to compete successfully and achieve our business objectives could be impaired, which could negatively impact our business, financial condition and results of operations. In addition, we cannot predict or estimate the amount of additional costs we may incur to comply with these requirements. We anticipate that these costs will materially increase our general and administrative expenses.

Furthermore, as a public company, we will incur additional legal, accounting and other expenses that have not been reflected in our predecessor’s historical financial statements or our pro forma financial statements included elsewhere in this prospectus. In addition, rules implemented by the SEC and the have imposed various requirements on public companies, including establishment and maintenance of effective disclosure and financial controls and changes in corporate governance practices. Our management and other personnel will need to devote a substantial amount of time to these compliance initiatives. These rules and regulations result in our incurring legal and financial compliance costs and will make some activities more time-consuming and costly. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified people to serve on our board of directors, our board committees or as executive officers.

 

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As a public reporting company, we will be subject to rules and regulations established from time to time by the SEC regarding our internal control over financial reporting. If we fail to establish and maintain effective internal control over financial reporting and disclosure controls and procedures, we may not be able to accurately report our financial results, or report them in a timely manner.

Upon consummation of this offering, we will become a public reporting company subject to the rules and regulations established from time to time by the SEC and The Nasdaq Stock Market LLC, or the Nasdaq Stock Market. These rules and regulations will require, among other things, that we establish and periodically evaluate procedures with respect to our internal control over financial reporting. Reporting obligations as a public company are likely to place a considerable strain on our financial and management systems, processes and controls, as well as on our personnel.

In addition, as a public company, we will be required to document and test our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act so that our management can certify as to the effectiveness of our internal control over financial reporting. Though we will be required to disclose changes made to our internal controls and procedures on a quarterly basis, we will not be required to make our first annual assessment of our internal control over financial reporting pursuant to Section 404 until the year following our first annual report required to be filed with the SEC. Furthermore, as an emerging growth company, our independent registered public accounting firm will not be required to formally attest to the effectiveness of our internal control over financial reporting pursuant to Section 404 until the later of the year following our first annual report required to be filed with the SEC and the date we are no longer an emerging growth company.

If our senior management is unable to conclude that we have effective internal control over financial reporting, or to certify the effectiveness of such controls, or if our independent registered public accounting firm cannot render an unqualified opinion on management’s assessment and the effectiveness of our internal control over financial reporting at such time as it is required to do so, or if material weaknesses in our internal control over financial reporting are identified, we could be subject to regulatory scrutiny, a loss of public and investor confidence, and to litigation from investors and stockholders, which could have a material adverse effect on our business and our stock price. In addition, if we do not maintain adequate financial and management personnel, processes and controls, we may not be able to manage our business effectively or accurately report our financial performance on a timely basis, which could cause a decline in our common stock price and adversely affect our results of operations and financial condition. Failure to comply with the Sarbanes-Oxley Act could potentially subject us to sanctions or investigations by the SEC, the Nasdaq Stock Market or other regulatory authorities, which would require additional financial and management resources.

An active trading market for our Class A common stock may never develop or be sustained.

Although we expect the shares of our Class A common stock will be authorized for trading on the Nasdaq Global Select Market, an active trading market for our Class A common stock may not develop on that exchange or elsewhere or, if developed, that market may not be sustained. Accordingly, if an active trading market for our Class A common stock does not develop or is not maintained, the liquidity of our Class A common stock, your ability to sell your shares of our Class A common stock when desired and the prices that you may obtain for your shares of Class A common stock will be adversely affected.

 

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If securities analysts do not publish research or reports about our company, or if they issue unfavorable commentary about us or our industry or downgrade our Class A common stock, the price of our Class A common stock could decline.

The trading market for our Class A common stock will depend in part on the research and reports that third-party securities analysts publish about our company and our industry. We may be unable or slow to attract research coverage and if one or more analysts cease coverage of our company, we could lose visibility in the market. In addition, one or more of these analysts could downgrade our Class A common stock or issue other negative commentary about our company or our industry. As a result of one or more of these factors, the trading price of our Class A common stock could decline.

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus contains forward-looking statements. All statements other than statements of historical facts contained in this prospectus may be forward-looking statements. Statements regarding our future results of operations and financial position, business strategy and plans and objectives of management for future operations, including, among others, statements regarding the Transactions, including the consummation of this offering, expected growth, future capital expenditures and debt service obligations, are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar expressions. Forward-looking statements contained in this prospectus include, but are not limited to statements about:

 

    our ability to execute our business strategy;

 

    our dependence upon our license agreements, our ability to renew and extend expiring license agreements and enter into license agreements for newer pop culture properties and our relationship with content providers;

 

    the trend of content providers consolidating their license relationships to do more business with fewer licensees;

 

    our ability to design and develop products that will be popular with consumers and to maintain the popularity of successful products;

 

    the effect on our business of changes in the retail industry and the market for consumer products;

 

    the continued growth of the market for pop culture consumer products;

 

    our ability to maintain and develop relationships with retail customers and distributors, including increasing sales and shelf space with existing retail customers and the number of retailers for whom we curate pop culture selections, and our intent to expand into new sales channels;

 

    competition in our industry and our ability to compete effectively with new or existing competitors;

 

    our ability to manage our growth effectively;

 

    the sustainability of, and fluctuations in, our gross margins over time;

 

    our dependence on third-party content providers;

 

    the ability of our licensed properties to generate market appeal and sales of our products;

 

    our ability to successfully manage our inventories;

 

    our ability to develop and introduce products in a timely and cost-effective manner;

 

    our ability to obtain, maintain and protect our intellectual property rights;

 

    our plan to expand our intellectual property across multiple channels, including movies, TV and digital content;

 

    our ability to operate our business without infringing, misappropriating or otherwise violating the intellectual property rights of others;

 

    attracting and retaining qualified personnel and maintaining our corporate culture;

 

    the seasonality of our business and the popularity and timing of new product releases and related content releases;

 

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    our susceptibility to risks created by our use of third-party manufacturers and our ability to find alternative sources of supply in a timely and cost-effective manner;

 

    the effects of adverse conditions in the certain geographic regions in which our manufacturing and sales are concentrated;

 

    the risks associated with our substantial sales and manufacturing operations outside the United States and plans to expand internationally;

 

    the effect of the United Kingdom’s referendum on withdrawal from the European Union on global economic conditions, financial markets and our business;

 

    changes in U.S. tax law, the stability of effective tax rates and adverse outcomes resulting from examination of our income or other tax returns;

 

    the impact on our business of changes in foreign currency exchange rates;

 

    the effect of global and regional economic downturns on the retail and credit markets and the financial health of our retail customers and consumers;

 

    our ability to comply with current or future government regulations that we are subject to;

 

    future product liability suits or product recalls;

 

    our ability to comply with anti-corruption and anti-bribery laws, governmental economic sanctions requirements and export and import controls;

 

    our ability to realize the anticipated benefits of acquisitions or investments in joint ventures;

 

    risks related to our e-commerce business and our intent to grow this business;

 

    our plans to continue to expand our marketing through social media outlets, our websites and internet-based advertising and the potential consequences of our use of social media;

 

    our ability to successfully operate our information systems and implement new technology effectively;

 

    the impact on our business if our electronic data is compromised;

 

    the effects of our indebtedness on our financial health and competitive position and our ability to secure additional financing and to meet our future capital needs;

 

    impairment in the value of our goodwill our other assets;

 

    the effects of ACON’s significant influence over us;

 

    the reduced corporate governance requirements to which we are subject as a result of being a controlled company;

 

    our ability to realize any tax benefits that may arise from our organizational structure and any redemptions or exchanges of common units of FAH, LLC for cash or stock, including in connection with this offering; and

 

    the other factors set forth under “Risk Factors.”

The forward-looking statements in this prospectus are only predictions. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our business, financial condition and results of operations. Forward-looking statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. We believe that these factors include, but are not limited to the factors set forth under

 

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“Risk Factors.” Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified, you should not rely on these forward-looking statements as predictions of future events. The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially from those projected in the forward-looking statements.

In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.

You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement of which this prospectus forms a part with the understanding that our actual future results, levels of activity, performance and achievements may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.

These forward-looking statements speak only as of the date of this prospectus. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained in this prospectus after we distribute this prospectus, whether as a result of any new information, future events or otherwise.

 

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OUR ORGANIZATIONAL STRUCTURE

Funko, Inc., a Delaware corporation, was formed on April 21, 2017 to serve as the issuer of the Class A common stock offered by this prospectus. Prior to this offering, all of our business operations have been conducted through FAH, LLC and its subsidiaries. We will consummate the Transactions (excluding this offering) on or prior to the consummation of this offering.

Existing Organization

FAH, LLC is treated as a partnership for U.S. federal income tax purposes and, as such is not subject to any U.S. federal entity-level income taxes. Taxable income or loss of FAH, LLC is included in the U.S. federal income tax returns of FAH, LLC’s members. Prior to the consummation of this offering, the Original Equity Owners were the only members of FAH, LLC, and included ACON, Fundamental, and certain of our current and former executive officers, employees and directors.

Transactions

We will consummate the following organizational transactions in connection with this offering:

 

    we will amend and restate the existing limited liability company agreement of FAH, LLC to, among other things, (1) convert all existing ownership interests (including vested profits interests and all unvested profits interests (subject to              common units received in exchange for unvested profits interests remaining subject to their existing time-based vesting requirements)) in FAH, LLC into              common units of FAH, LLC, and (2) appoint Funko, Inc. as the sole managing member of FAH, LLC upon its acquisition of common units in connection with this offering;

 

    we will amend and restate Funko, Inc.’s certificate of incorporation to, among other things, provide (1) for Class A common stock, with each share of our Class A common stock entitling its holders to one vote per share on all matters presented to our stockholders generally and (2) for Class B common stock, with each share of our Class B common stock entitling its holders to one vote per share on all matters presented to our stockholders generally, and that shares of our Class B common stock may only be held by the Continuing Equity Owners and their permitted transferees as described in “Description of Capital Stock—Common Stock—Class B Common Stock;”

 

    we will issue                  shares of our Class A common stock to the purchasers in this offering (or                  shares if the underwriters exercise in full their option to purchase additional shares of Class A common stock) in exchange for net proceeds of approximately $              million (or approximately $              million if the underwriters exercise in full their option to purchase additional shares of Class A common stock) based upon an assumed initial public offering price of $              per share (which is the midpoint of the price range set forth on the cover page of this prospectus);

 

    we will use all of the net proceeds from this offering to purchase (1)              newly issued common units (or              common units if the underwriters exercise in full their option to purchase additional shares of Class A common stock) directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions and (2)              common units directly from certain of the Continuing Equity Owners at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions, which combined represents     % of FAH, LLC’s outstanding common units following this offering (or     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

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    FAH, LLC intends to use the net proceeds from the sale of common units to Funko, Inc. to repay the Subordinated Promissory Notes, repay a portion of the outstanding borrowings under our Senior Secured Credit Facilities (as defined herein) and, if any remain, for general corporate purposes as described under “Use of Proceeds”;

 

    existing options to purchase certain ownership interests in FAH, LLC will be converted into              options to purchase common units in FAH, LLC;

 

    existing warrants to purchase ownership interests in FAH, LLC held by the Warrant Holders will be converted into              common units of FAH, LLC;

 

    the Former Equity Owners will exchange their indirect ownership interests in common units of FAH, LLC for                  shares of Class A common stock on a one-to-one basis;

 

    the Former Equity Owners will sell              shares of our Class A common stock in this offering as selling stockholders; and

 

    Funko, Inc. will enter into (1) the Stockholders Agreement with ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, (2) the Registration Rights Agreement with certain of the Original Equity Owners (including each of our executive officers) and (3) the Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners. For a description of the terms of the Stockholders Agreement, the Registration Rights Agreement and the Tax Receivable Agreement, see “Certain Relationships and Related Party Transactions.”

We collectively refer to the foregoing organizational transactions as the Transactions.

Organizational Structure Following this Offering

 

    Funko, Inc. will be a holding company and its principal asset will consist of common units it purchases from FAH, LLC and certain of the Continuing Equity Owners and common units it acquires from the Former Equity Owners;

 

    Funko, Inc. will be the sole managing member of FAH, LLC and will control the business and affairs of FAH, LLC and its subsidiaries;

 

    Funko, Inc. will own, directly or indirectly,              common units of FAH, LLC, representing approximately     % of the economic interest in FAH, LLC (or              common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

    the Continuing Equity Owners (1) will own              common units of FAH, LLC (excluding              common units subject to certain time-based vesting requirements), representing approximately     % of the economic interest in FAH, LLC (or              common units, representing approximately     % of the economic interest in FAH, LLC if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (2) will own              shares of Class B common stock of Funko, Inc., representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock);

 

   

the purchasers in this offering (1) will own              shares of Class A common stock of Funko, Inc. (or              shares of Class A common stock of Funko, Inc. if the underwriters exercise in full their option to purchase additional shares of Class A common stock), representing approximately     % of the combined voting power of all of Funko, Inc.’s common stock and approximately     % of the economic interest in Funko, Inc. (or approximately     % of the

 

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combined voting power and approximately     % of the economic interest if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (2) through Funko, Inc.’s ownership of FAH, LLC’s common units, indirectly will hold approximately     % of the economic interest in FAH, LLC (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock); and

 

    ACON (1) will own              shares of Class A common stock of Funko, Inc. (or              shares of Class A common stock of Funko, Inc. if the underwriters exercise in full their option to purchase additional shares of Class A common stock), representing approximately     % of the economic interest in Funko, Inc. (or approximately     % of the economic interest if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (2) will own              shares of Class B common stock of Funko, Inc., which combined with the Class A common stock described in clause (1) will represent approximately     % of the combined voting power of all of Funko, Inc.’s common stock (or approximately     % of the combined voting power if the underwriters exercise in full their option to purchase additional shares of Class A common stock), and (3) through Funko, Inc.’s ownership of common units of FAH, LLC and ACON’s ownership interest in common units of FAH, LLC, directly or indirectly will hold approximately     % of the economic interest in FAH, LLC (or approximately     % if the underwriters exercise in full their option to purchase additional shares of Class A common stock).

 

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The diagram below depicts our organizational structure after giving effect to the Transactions, including this offering, assuming no exercise by the underwriters of their option to purchase additional shares of Class A common stock.

 

 

LOGO

 

(1) Includes Fundamental, the Former Profits Interests Holders, the Warrant Holders, certain of our current executive officers, other employees and directors and each of their permitted transferees. The common units held by the Continuing Equity Owners exclude                      common units that will be subject to time-based vesting.
(2) FAH, LLC, its wholly owned subsidiary FHL and its indirect wholly owned subsidiary Funko, LLC are the borrowers under our Senior Secured Credit Facilities.
(3) A portion of these common units will be held through wholly owned subsidiaries of Funko, Inc. as a result of the Former Equity Owners exchanging their indirect ownership interests in common units of FAH, LLC for shares of Class A common stock on a one-to-one basis as part of the Transactions.

 

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As the sole managing member of FAH, LLC, we will operate and control all of the business and affairs of FAH, LLC and, through FAH, LLC and its subsidiaries, conduct the business. Following the Transactions, including this offering, we will record a significant non-controlling interest in our consolidated subsidiary, FAH, LLC, relating to the ownership interest of the Continuing Equity Owners. Accordingly, although Funko, Inc. will have a minority economic interest in FAH, LLC, it will control the management of FAH, LLC as the sole managing member. As a result, Funko, Inc. will consolidate FAH, LLC and record a non-controlling interest in consolidated entity for the economic interest in FAH, LLC held by the Continuing Equity Owners.

Unless otherwise indicated, this prospectus assumes the shares of Class A common stock are offered at $        per share (the midpoint of the price range listed on the cover page of this prospectus). Although the number of shares of Class A common stock being offered hereby to the public and the total number of FAH, LLC common units outstanding after the offering will remain fixed regardless of the initial public offering price in this offering, certain share information and FAH, LLC common unit information presented in this prospectus will vary depending on the initial public offering price in this offering. Specifically, the relative allocation of the common units issued in the Transactions as among the Original Equity Owners will vary, depending on the initial public offering price in this offering, which will also impact the shares of Class A common stock and Class B common stock issued to the Original Equity Owners in the Transactions. An increase in the assumed initial public offering price would result in a decrease in the amount of common units of FAH, LLC and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and an increase in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis. A decrease in the assumed initial public offering price would result in an increase in the amount of common units and, in turn, shares of Class B common stock issued to ACON, Fundamental, the Warrant Holders and certain other Original Equity Owners and a decrease in the amount of common units issued to the Former Profits Interests Holders on an aggregate basis.

Incorporation of Funko, Inc.

Funko, Inc., the issuer of the Class A common stock offered hereby, was incorporated as a Delaware corporation on April 21, 2017. Funko, Inc. has not engaged in any material business or other activities except in connection with its formation. The amended and restated certificate of incorporation of Funko, Inc. that will become effective immediately prior to the consummation of this offering will authorize two classes of common stock, Class A common stock and Class B common stock, each having the terms described in “Description of Capital Stock.”

Reclassification and Amendment and Restatement of the FAH LLC Agreement

Prior to or substantially concurrently with the consummation of this offering, the limited liability company agreement of FAH, LLC will be amended and restated to, among other things, modify its capital structure by creating a single new class of units that we refer to as “common units” and providing for a right of redemption of common units (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) in exchange for, at our election, shares of our Class A common stock or cash. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.”

 

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USE OF PROCEEDS

We estimate, based upon an assumed initial public offering price of $        per share (which is the midpoint of the price range set forth on the cover page of this prospectus), that we will receive net proceeds from this offering of approximately $              million (or $              million if the underwriters exercise in full their option to purchase additional shares of Class A common stock), after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

We intend to use the net proceeds from this offering (including any net proceeds from any exercise of the underwriters’ option to purchase additional shares of Class A common stock) to purchase (1)              common units (or              common units if the underwriters exercise in full their option to purchase additional shares of Class A common stock) directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions, and (2)              common units directly from certain of the Continuing Equity Owners at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions.

FAH, LLC intends to use the $          million in net proceeds it receives from the sale of common units to Funko, Inc. (together with any additional proceeds it may receive if the underwriters exercise their option to purchase additional shares of Class A common stock) as follows:

 

    to repay the Subordinated Promissory Notes in full;

 

    to repay approximately $          million of the outstanding borrowings under our Senior Secured Credit Facilities, including $         million of outstanding borrowings under our Term Loan A Facility, $        million of outstanding borrowings under our Term Loan B Facility and $        million of outstanding borrowings under our Revolving Credit Facility; and

 

    the remainder for general corporate purposes.

The Subordinated Promissory Notes are scheduled to mature on the earlier of (1) 180 days after the payment in full of the obligations under our Senior Secured Credit Facilities, and (2) the consummation of this offering, and accrued interest at a rate of 11 .0% per year as of June 30, 2017. Proceeds from the Subordinated Promissory Notes were used to fund a portion of the 2016 Earnout Payment (as described under the caption “Certain Relationships and Related Party Transactions—Related Party Agreements in Effect Prior to this Offering—ACON Acquisition”).

The Term Loan A Facility, the Term Loan B Facility and the Revolving Credit Facility are each scheduled to mature on October 30, 2021 and had interest rates of 8.25%, 11.05% and 3.74%, respectively, as of June 30, 2017. In September 2016, we used $50.0 million of borrowings under the Term Loan A Facility to pay a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management. In June 2017, we used $20.0 million of the borrowings under the Term Loan A Facility to fund a portion of the purchase price for the Loungefly Acquisition, and to pay related fees and expenses. In January 2017, we used $50.0 million of borrowings under the Term Loan B Facility to pay a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain of our executive officers and other employees. Outstanding borrowings under the Revolving Credit Facility were used to fund working capital and capital expenditures, as well as the Underground Toys Acquisition in January 2017 and the formation of our subsidiary Funko UK, Ltd.

 

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Pending use of the net proceeds from this offering described above, we may invest the net proceeds in short- and intermediate-term interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed obligations of the United States government.

Assuming no exercise of the underwriters’ option to purchase additional shares of Class A common stock, each $1.00 increase (decrease) in the assumed initial public offering price of $        per share (which is the midpoint of the price range set forth on the cover page of this prospectus) would increase (decrease) the net proceeds to us from this offering by approximately $          million, assuming the number of shares offered, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

Each 1,000,000 share increase (decrease) in the number of shares offered in this offering would increase (decrease) the net proceeds to us from this offering by approximately $          million, assuming that the price per share for the offering remains at $          (which is the midpoint of the price range set forth on the cover page of this prospectus), and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.

The Former Equity Owners, who will exchange their indirect ownership interests in common units of FAH, LLC for shares of Class A common stock as part of the Transactions, will sell              of those shares of Class A common stock in this offering as selling stockholders. We will not receive any proceeds from the sale of shares by the selling stockholders. After deducting estimated underwriting discounts and commissions, the selling stockholders will receive approximately $          million of net proceeds from this offering.

FAH, LLC will bear or reimburse Funko, Inc. and the selling stockholders for all of the expenses incurred in connection with this offering.

 

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CAPITALIZATION

The following table sets forth the cash and cash equivalents and capitalization as of June 30, 2017, as follows:

 

    of FAH, LLC and its subsidiaries on an actual basis;

 

    of Funko, Inc. and its subsidiaries on a pro forma basis to give effect to the Transactions, excluding this offering; and

 

    of Funko, Inc. and its subsidiaries on a pro forma as adjusted basis to give effect to the Transactions, including our sale of              shares of Class A common stock in this offering at an assumed initial public offering price of $        per share (which is the midpoint of the range set forth on the cover page of this prospectus), after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us, and the application of the net proceeds therefrom as described under “Use of Proceeds,” and the sale of              shares of our Class A common stock in this offering by the selling stockholders.

For more information, please see “Our Organizational Structure,” “Use of Proceeds” and “Unaudited Pro Forma Consolidated Financial Information” elsewhere in this prospectus. You should read this information in conjunction with our consolidated financial statements and the related notes included elsewhere in this prospectus and the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and other financial information contained in this prospectus.

 

     As of June 30, 2017  
     Historical
FAH, LLC
    Pro Forma
Funko, Inc.
     Pro Forma
As Adjusted
Funko, Inc. (5)
 
    

(in thousands, except share

and per share data)

 

Cash and cash equivalents

   $ 12,752     $                   $               
  

 

 

   

 

 

    

 

 

 

Indebtedness:

       

Term Loan A Facility (1)(2)

   $ 227,040     $      $  

Term Loan B Facility (1)(3)

     40,970       

Revolving Credit Facility (1)

     51,054       

Subordinated Promissory Notes

     20,000       
  

 

 

   

 

 

    

 

 

 

Total indebtedness

     339,064       

Total equity :

       

Members’ equity

     225,871               

Class A common stock, par value $0.0001 per share; no shares authorized, issued and outstanding, actual;              shares authorized,              issued and outstanding, pro forma

           

Class B common stock, par value $0.0001 per share; no shares authorized, issued and outstanding, actual;              shares authorized,              issued and              outstanding, pro forma

           

Additional paid-in capital

     65,588       

Accumulated other comprehensive income

     771       

Accumulated deficit

     (137,240     
  

 

 

   

 

 

    

 

 

 

Total members’/stockholders’ equity

     154,990       
  

 

 

   

 

 

    

 

 

 

Non-controlling interest (4)

           
  

 

 

   

 

 

    

 

 

 

Total capitalization

   $ 494,054     $                       $                   
  

 

 

   

 

 

    

 

 

 

 

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(1)   For a discussion of the Term Loan A Facility, the Term Loan B Facility, the Revolving Credit Facility and the Subordinated Promissory Notes, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Description of Senior Secured Credit Facilities” and “—Description of Subordinated Promissory Notes.” See also our audited consolidated financial statements included elsewhere in this prospectus, which include all liabilities.
(2)   Net of $6.1 million of unamortized discount.
(3) Net of $ 6.0 million of unamortized discount.
(4)   On a pro forma basis and a pro forma as adjusted basis, includes the ownership interests not owned by Funko, Inc., which represents     % and     % of the outstanding common units of FAH, LLC, respectively. The Continuing Equity Owners will hold the     % and     % non-controlling interest in FAH, LLC on a pro forma and pro forma as adjusted basis, respectively.
(5)   Each $1.00 increase or decrease in the assumed initial public offering price of $        per share (which is the midpoint of the price range set forth on the cover page of this prospectus) would increase or decrease each of cash, additional paid-in capital, total members’ / stockholders’ equity and total capitalization on a pro forma as adjusted basis by approximately $          million, assuming the number of shares offered, as set forth on the cover page of this prospectus, remains the same, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.

Each 1,000,000 share increase or decrease in the number of shares offered in this offering would increase or decrease each of cash, additional paid-in capital, total members’ / stockholders’ equity and total capitalization on a pro forma as adjusted basis by approximately $          million, assuming that the price per share for the offering remains at $          (which is the midpoint of the price range set forth on the cover page of this prospectus), and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.

 

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DIVIDEND POLICY

We currently intend to retain all available funds and any future earnings to fund the development and growth of our business and to repay indebtedness, and therefore we do not anticipate declaring or paying any cash dividends on our Class A common stock in the foreseeable future. Holders of our Class B common stock are not entitled to participate in any dividends declared by our board of directors. Additionally, our ability to pay any cash dividends on our Class A common stock is limited by restrictions on the ability of FAH, LLC and our other subsidiaries to pay dividends or make distributions under the terms of our Senior Secured Credit Facilities. See “Description of Capital Stock” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Description of Senior Secured Credit Facilities.” Furthermore, because we are a holding company, our ability to pay cash dividends on our Class A common stock depends on our receipt of cash distributions from FAH, LLC and, through FAH, LLC, cash distributions and dividends from our other direct and indirect wholly owned subsidiaries. Any future determination as to the declaration and payment of dividends, if any, will be at the discretion of our board of directors, subject to compliance with contractual restrictions and covenants in the agreements governing our current and future indebtedness. Any such determination will also depend upon our business prospects, results of operations, financial condition, cash requirements and availability and other factors that our board of directors may deem relevant.

Accordingly, you may need to sell your shares of our Class A common stock to realize a return on your investment, and you may not be able to sell your shares at or above the price you paid for them. See “Risk Factors—Risks Relating to This Offering and Ownership of Our Class A Common Stock—We do not intend to pay dividends on our Class A common stock for the foreseeable future.”

FAH, LLC paid cash tax distributions to its members during the six months ended June 30, 2017 and 2016 aggregating $23.7 million and $13.7 million, respectively, and during the year ended December 31, 2016 and the Predecessor 2015 Period aggregating $21.3 million and $12.2 million, respectively. FAH, LLC did not pay any cash tax distributions to its members during the three months ended September 30, 2017 and the Successor 2015 Period. Additionally, FAH, LLC paid a special distribution to its members during the six months ended June 30, 2017 of $49.2 million (of which $49.0 million consisted of cash and $0.2 million consisted of a reduction in interest and principal under loans to certain members of management) and during the year ended December 31, 2016 paid a special distribution to its members of $49.2 million (of which $49.0 million consisted of cash and $0.2 million consisted of a reduction in interest and principal under loans to certain members of management).

 

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DILUTION

The Continuing Equity Owners will own common units in FAH, LLC after the Transactions. Because the Continuing Equity Owners do not own any Class A common stock or have any right to receive distributions from Funko, Inc., we have presented dilution in pro forma net tangible book value per share both before and after this offering assuming that all of the holders of common units (other than Funko, Inc.) had their common units redeemed or exchanged for newly-issued shares of Class A common stock on a one-for-one basis (rather than for cash) and the cancellation for no consideration of all of their shares of Class B common stock (which are not entitled to receive distributions or dividends, whether cash or stock from Funko, Inc.) in order to more meaningfully present the dilutive impact on the investors in this offering. We refer to the assumed redemption or exchange of all common units for shares of Class A common stock as described in the previous sentence as the Assumed Redemption.

Dilution is the amount by which the offering price paid by the purchasers of the Class A common stock in this offering exceeds the pro forma net tangible book value per share of Class A common stock after the offering. FAH, LLC’s pro forma net tangible book value as of June 30, 2017 prior to this offering and after the Assumed Redemption was $        . Pro forma net tangible book value per share prior to this offering is determined by subtracting our total liabilities from the total book value of our tangible assets and dividing the difference by the number of shares of Class A common stock deemed to be outstanding after giving effect to the Assumed Redemption.

If you invest in our Class A common stock in this offering, your ownership interest will be immediately diluted to the extent of the difference between the initial public offering price per share and the pro forma net tangible book value per share of our Class A common stock after this offering.

Pro forma net tangible book value per share after this offering is determined by subtracting our total liabilities from the total book value of our tangible assets and dividing the difference by the number of shares of Class A common stock deemed to be outstanding, after giving effect to the Transactions, including this offering and the application of the proceeds from this offering as described in “Use of Proceeds,” and the Assumed Redemption. Our pro forma net tangible book value as of June 30, 2017 after this offering would have been approximately $          million, or $        per share of Class A common stock. This amount represents an immediate increase in pro forma net tangible book value of $        per share to our existing stockholders and an immediate dilution in pro forma net tangible book value of approximately $        per share to new investors purchasing shares of Class A common stock in this offering. We determine dilution by subtracting the pro forma net tangible book value per share after this offering from the amount of cash that a new investor paid for a share of Class A common stock. The following table illustrates this dilution:

 

Assumed initial public offering price per share

   $               

Pro forma net tangible book value per share as of June 30, 2017 before this offering (1)

  

Increase per share attributable to investors in this offering

  

Pro forma net tangible book value per share after this offering (2)

   $               
  

 

 

 

Dilution per share to new Class A common stock investors

   $               
  

 

 

 

 

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(1)   The computation of pro forma net tangible book value per share as of June 30, 2017 before this offering is set forth below (in thousands except for share data):

 

Numerator

  

Book value of tangible assets

   $               

Less: total liabilities

   $  
  

 

 

 

Pro forma net tangible book value (a)

   $               
  

 

 

 

Denominator

  

Shares of Class A common stock to be outstanding immediately prior to this offering, the Assumed Redemption and vested restricted stock units (b)

  
  

 

 

 

Total

  
  

 

 

 

Pro forma net tangible book value per share

   $  
  

 

 

 

 

  (a)   Gives pro forma effect to the Transactions (excluding this offering) and the Assumed Redemption.
  (b)   Reflects              outstanding shares of Class A common stock, consisting of (i)              outstanding shares of Class A common stock issued in exchange for certain of the Former Equity Owners’ indirect ownership interests in common units of FAH, LLC on a one-to-one basis and (ii)              outstanding shares of Class A common stock issuable upon the exchange of common units to be held by the Continuing Equity Owners prior to this offering.

 

( 2)   The computation of pro forma net tangible book value per share as of June 30, 2017 after giving effect to this offering is set forth below:

 

Numerator

  

Book value of tangible assets

   $               

Less: total liabilities

  
  

 

 

 

Pro forma net tangible book value (deficit) (a)

   $               
  

 

 

 

Denominator

  

Shares of Class A common stock to be outstanding immediately after this offering and the Assumed Redemption (b)

  
  

 

 

 

Total

  
  

 

 

 

Pro forma net tangible book value (deficit) per share

   $               
  

 

 

 

 

  (a)   Gives pro forma effect to the Transactions (including this offering) and the Assumed Redemption. Pro forma net tangible book value reflects a net increase from stockholders’ equity of $        million, comprised of an increase of $        million as a result of the issuance of our Class A common stock, offset by a reduction of $        million related to our purchase of common units directly from certain of the Continuing Equity Owners with a portion of the net proceeds from this offering, as described under “Use of Proceeds.”
  (b)   Reflects              outstanding shares of Class A common stock, consisting of (i)              shares of Class A common stock to be issued in this offering, and (ii) the              shares described in note (1)(b) above, including              shares of Class A common stock sold by the Former Equity Owners in this offering, less the shares of Class A common stock issuable upon the exchange of common units to be purchased directly from certain of the Continuing Equity Owners with a portion of the net proceeds from this offering, as described under “Use of Proceeds.” Does not reflect stock options and restricted stock units covering a total of              shares of our Class A common stock to be granted to certain of our directors and certain of our employees in connection with this offering as described under the captions “Executive Compensation—Executive Compensation Arrangements—Director Compensation” and “Executive Compensation—Equity Compensation Plans—2017 Incentive Award Plan.”

A $1.00 increase (decrease) in the assumed initial public offering price of $        per share, which is the midpoint of the price range listed on the cover page of this prospectus, would increase (decrease) the pro forma net tangible book value per share after this offering by approximately $        , and dilution in pro forma net tangible book value per share to new investors by approximately $        , assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

 

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If the underwriters exercise in full their option to purchase additional shares of Class A common stock, the pro forma net tangible book value after the offering would be $        per share, the increase in pro forma net tangible book value per share to existing stockholders would be $        per share and the dilution in pro forma net tangible book value to new investors would be $        per share, in each case assuming an initial public offering price of $        per share, which is the midpoint of the price range listed on the cover page of this prospectus.

The following table summarizes, as of June 30, 2017 after giving effect to the Transactions (including this offering) and the Assumed Redemption, the number of shares of Class A common stock purchased from us, the total consideration paid, or to be paid, to us and the average price per share paid, or to be paid, by existing owners and by the new investors. The calculation below is based on an assumed initial public offering price of $        per share, which is the midpoint of the price range listed on the cover page of this prospectus, before deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.

 

     Shares
Purchased
    Total Consideration        
     Number      Percent     Amount      Percent     Average price
per Share
 

Original Equity Owners

                       $                                            $                       

New investors

            
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

Total

        100   $        100   $                       
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

Each $1.00 increase (decrease) in the assumed initial public offering price of $        per share would increase (decrease) the total consideration paid by new investors and the total consideration paid by all stockholders by $          million, assuming the number of shares offered by us remains the same and after deducting estimated underwriting discounts and commissions but before estimated offering expenses.

Except as otherwise indicated, the discussion and the tables above assume no exercise of the underwriters’ option to purchase additional shares of Class A common stock. In addition, the discussion and tables above exclude shares of Class B common stock, because holders of the Class B common stock are not entitled to distributions or dividends, whether cash or stock, from Funko, Inc. The number of shares of our Class A common stock outstanding after this offering as shown in the tables above is based on the number of shares outstanding as of June 30, 2017, after giving effect to the Transactions and the Assumed Redemption, and excludes              shares of Class A common stock reserved for issuance under our 2017 Plan (as described in “Executive Compensation—Equity Compensation Plans—2017 Incentive Award Plan”), including shares of Class A common stock issuable pursuant to             stock options and             restricted stock units granted on the date of this prospectus to our directors and certain employees, including the named executive officers, in connection with this offering as described in “Executive Compensation—Executive Compensation Arrangements—Director Compensation” and “Executive Compensation—Equity Compensation Plans—2017 Incentive Award Plan.”

To the extent any of these outstanding options are exercised, there will be further dilution to new investors. To the extent all of such outstanding options had been exercised as of June 30, 2017 the pro forma net tangible book value per share after this offering would be $        , and total dilution per share to new investors would be $        .

 

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If the underwriters exercise in full their option to purchase additional shares of Class A common stock:

 

    the percentage of shares of Class A common stock held by the Original Equity Owners will decrease to approximately     % of the total number of shares of our Class A common stock outstanding after this offering; and

 

    the number of shares held by new investors will increase to             , or approximately     % of the total number of shares of our Class A common stock outstanding after this offering.

 

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SELECTED HISTORICAL AND UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL AND OTHER DATA

The following table presents the selected historical consolidated financial and other data for FAH, LLC and its subsidiaries. FAH, LLC is the predecessor of the issuer, Funko, Inc., for financial reporting purposes. The selected consolidated statements of operations and statements of cash flows data for the year ended December 31, 2016 (Successor), the period from October 31, 2015 through December 31, 2015 (Successor) and the period from January 1, 2015 through October 30, 2015 (Predecessor), and the summary consolidated balance sheet data as of December 31, 2016 and 2015 are derived from the audited consolidated financial statements of FAH, LLC included elsewhere in this prospectus. The selected consolidated statements of operations and statements of cash flows data for the six months ended June 30, 2017 and 2016, and the summary consolidated balance sheet data as of June 30, 2017 are derived from the unaudited consolidated financial statements of FAH, LLC included elsewhere in this prospectus. We have prepared the unaudited consolidated financial information set forth below on the same basis as our audited consolidated financial statements and have included all adjustments, consisting of only normal recurring adjustments, that we consider necessary for a fair presentation of our financial position and results of operations for such periods.

The results for any interim period are not necessarily indicative of the results that may be expected for a full year. Additionally, the results of operations for the periods presented below are not necessarily indicative of the results to be expected for any future period. The information set forth below should be read together with the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and the consolidated financial statements and the accompanying notes included elsewhere in this prospectus.

The selected unaudited pro forma consolidated financial data of Funko, Inc. presented below have been derived from our unaudited pro forma consolidated financial statements included elsewhere in this prospectus. The selected unaudited pro forma financial data for the year ended December 31, 2016 and as of and for the six months ended June 30, 2017 give effect to the Transactions, as described in “Our Organizational Structure,” and the consummation of this offering, the use of proceeds therefrom and related transactions, as described in “Use of Proceeds,” as if all such transactions had occurred on January 1, 2016, in the case of the selected unaudited pro forma consolidated statements of operations data, and as of June 30, 2017, in the case of the selected unaudited pro forma consolidated balance sheet data. The unaudited pro forma consolidated financial information includes various estimates which are subject to material change and may not be indicative of what our operations or financial position would have been had this offering and the related transactions taken place on the dates indicated, or that may be expected to occur in the future. See “Unaudited Pro Forma Consolidated Financial Information” for a complete description of the adjustments and assumptions underlying the unaudited pro forma consolidated financial data.

 

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The selected historical financial data of Funko, Inc. has not been presented because Funko, Inc. is a newly incorporated entity, has had no business transactions or activities to date and had no assets or liabilities during the periods presented in this section.

 

    Pro Forma
Funko, Inc.
    Historical FAH, LLC  
      Successor           Predecessor  
    Six Months
Ended

June 30,
2017
    Year Ended
December 31,

2016
   

 

Six Months Ended

June 30,

    Year Ended
December 31,

2016
    Period from
October 31,
2015

through
December 31,
2015
          Period from
January 1,
2015

through
October 30,
2015
 
        2017     2016              
   

(unaudited)

    (unaudited)        
    (in thousands, except margins)  

Consolidated Statements of Operations Data:

                 

Net sales

  $                   $                   $ 203,798     $ 176,261     $ 426,717     $   56,565         $ 217,491  

Cost of sales (exclusive of depreciation and amortization shown separately below)

        130,066       125,799       280,396       44,485           131,621  

Selling, general and administrative expenses

        50,901       37,087       77,525       13,894           37,145  

Acquisition transaction costs

        3,086       349       1,140       7,559           13,301  

Depreciation and amortization

        14,322       11,174       23,509       3,370           5,723  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Income (loss) from operations

        5,423       1,852       44,147       (12,743         29,701  

Interest expense, net

        14,677       7,879       17,267       2,818           2,202  

Other income, net

        (113     —         —         —             —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Income (loss) before income taxes

        (9,141     (6,027     —         —             —    

Income tax expense

        1,024       —         —         —             —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Net income (loss)

  $     $                  $ (10,165   $ (6,027   $ 26,880     $ (15,561       $ 27,499  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Consolidated Statements of Cash Flows Data:

                 

Net cash provided by operating activities

      $ 15,750     $ 16,389     $ 49,468     $ 14,110         $ 8,538  

Net cash used in investing activities

        (46,764     (8,014     (22,105     (244,421         (10,043

Net cash (used in) provided by financing activities

        37,627       3,339       (45,613     244,456           11,390  

Selected Other Data:

                 

EBITDA (1)

  $     $                  $ 19,858     $ 13,026     $ 67,656     $ (9,373       $ 35,424  

Adjusted EBITDA (1)

  $     $                  $ 31,284     $ 35,644     $ 96,960     $ 13,170         $ 61,996  

Net income (loss) margin

    %              %      (5.0 )%      (3.4 )%      6.3     (27.5 )%          12.6

Adjusted EBITDA margin (1)

    %              %      15.4     20.2     22.7     23.3         28.5

 

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     Pro Forma
Funko, Inc. (2)
     Historical FAH, LLC  
     June 30,
2017
     June 30,
2017
     December 31,
2016
     December 31,
2015
 
     (unaudited)      (unaudited)         
    

(in thousands)

 

Consolidated Balance Sheets Data:

           

Cash and cash equivalents

   $                   $ 12,752      $           6,161      $       24,411  

Total assets

        588,380        522,237        505,330  

Total debt (3)

        339,064        217,753        169,846  

Total members’/stockholders’ equity

        154,990        217,377        243,556  

 

(1)   EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are supplemental measures of our performance that are not required by, or presented in accordance with, GAAP. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin are not measurements of our financial performance under GAAP and should not be considered as an alternative to net income (loss), net income (loss) margin or any other performance measure derived in accordance with GAAP, or as an alternative to cash flows from operating activities as a measure of our liquidity.

 

   We define “EBITDA” as net income before interest expense, net, income tax expense and depreciation and amortization. We define “Adjusted EBITDA” as EBITDA further adjusted for monitoring fees, non-cash charges related to equity-based compensation programs, earnout fair market value adjustments, inventory step-ups, acquisition transaction costs, foreign currency transaction (gains) losses and other unusual or one-time items. We define Adjusted EBITDA margin as the ratio of Adjusted EBITDA to net sales. We caution investors that amounts presented in accordance with our definitions of EBITDA, Adjusted EBITDA and Adjusted EBITDA margin may not be comparable to similar measures disclosed by our competitors, because not all companies and analysts calculate EBITDA, Adjusted EBITDA and Adjusted EBITDA margin in the same manner. We present EBITDA, Adjusted EBITDA and Adjusted EBITDA margin because we consider them to be important supplemental measures of our performance and believe they are frequently used by securities analysts, investors and other interested parties in the evaluation of companies in our industry. Management believes that investors’ understanding of our performance is enhanced by including these non-GAAP financial measures as a reasonable basis for comparing our ongoing results of operations.

Management uses EBITDA, Adjusted EBITDA and Adjusted EBITDA margin:

 

    as a measurement of operating performance because they assist us in comparing the operating performance of our business on a consistent basis, as they remove the impact of items not directly resulting from our core operations;

 

    for planning purposes, including the preparation of our internal annual operating budget and financial projections;

 

    as a consideration to assess incentive compensation for our employees;

 

    to evaluate the performance and effectiveness of our operational strategies; and

 

    to evaluate our capacity to expand our business.

By providing these non-GAAP financial measures, together with reconciliations, we believe we are enhancing investors’ understanding of our business and our results of operations, as well as assisting investors in evaluating how well we are executing our strategic initiatives. In addition, our Senior Secured Credit Facilities use Adjusted EBITDA to measure our compliance with covenants such as senior leverage ratio. EBITDA, Adjusted EBITDA and Adjusted EBITDA margin have limitations as analytical tools, and should not be considered in isolation, or as an alternative to, or a substitute for net income, net income (loss) margin or other financial statement data presented in our consolidated financial statements included elsewhere in this prospectus as indicators of financial performance. Some of the limitations are:

 

    such measures do not reflect our cash expenditures, or future requirements for capital expenditures or contractual commitments;

 

    such measures do not reflect changes in, or cash requirements for, our working capital needs;

 

    such measures do not reflect the interest expense, or the cash requirements necessary to service interest or principal payments on our debt;

 

    such measures do not reflect our tax expense or the cash requirements to pay our taxes;

 

    although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future and such measures do not reflect any cash requirements for such replacements; and

 

    other companies in our industry may calculate such measures differently than we do, limiting their usefulness as comparative measures.

 

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Due to these limitations, EBITDA, Adjusted EBITDA and Adjusted EBITDA margin should not be considered as measures of discretionary cash available to us to invest in the growth of our business. We compensate for these limitations by relying primarily on our GAAP results and using these non-GAAP measures only supplementally. As noted in the table below, Adjusted EBITDA includes adjustments for monitoring fees, non-cash charges related to equity-based compensation programs, earnout fair market value adjustments, inventory step-ups, acquisition transaction costs and other unusual or one-time items. It is reasonable to expect that these items will occur in future periods. However, we believe these adjustments are appropriate because the amounts recognized can vary significantly from period to period, do not directly relate to the ongoing operations of our business and complicate comparisons of our internal operating results and operating results of other companies over time. In addition, Adjusted EBITDA includes adjustments for other items that we do not expect to regularly record following this offering. Each of the normal recurring adjustments and other adjustments described in this paragraph and in the reconciliation table below help management with a measure of our core operating performance over time by removing items that are not related to day-to-day operations.

The following table reconciles EBITDA and Adjusted EBITDA to the most directly comparable GAAP financial performance measure, which is net income:

 

    Pro Forma Funko, Inc.     Historical FAH, LLC  
      Successor           Predecessor  
    Six
Months
Ended
June 30,

2017
    Year Ended
December 31,
2016
   

Six Months Ended

June 30,

    Year Ended
December 31,
2016
    Period from
October 31,
2015 through
December 31,
      2015      
          Period from
January 1,
2015

through
October 30,
      2015      
    Year Ended
December 31,
      2014      
 
        2017     2016                
    (unaudited)     (unaudited)                                
    (in thousands)  

Net income (loss)

  $                   $                   $   (10,165   $ (6,027   $ 26,880     $ (15,561       $ 27,499     $ 19,615  

Interest expense, net

        14,677       7,879       17,267       2,818           2,202       2,693  

Income tax expense

        1,024                                    

Depreciation and amortization

        14,322       11,174       23,509       3,370           5,723       4,003  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

EBITDA

  $     $     $   19,858     $   13,026     $ 67,656     $ (9,373       $ 35,424     $ 26,311  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

Adjustments:

                   

Monitoring fees (a)

        981       749       1,498       272           3,346       1,416  

Equity-based compensation (b)

        3,745       1,166       2,369       4,484           9,925        

Earnout fair market value adjustment (c)

        8       6,630       8,561       1,540                  

Inventory step-up (d)

        2,630       13,435       13,434       8,688                  

Acquisition transaction costs and other expenses (e)

        4,175       638       3,442       7,559           13,301       385  

Foreign currency transaction (gain) loss (f)

        (113                                  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

Adjusted EBITDA

  $                   $     $   31,284     $   35,644     $   96,960     $   13,170         $   61,996     $   28,112  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

 

 

  (a)   Represents monitoring fees paid pursuant to a management services agreement with Fundamental Capital, LLC, which was terminated in 2015 in connection with the ACON Acquisition, and a management services agreement with ACON that was entered into in connection with the ACON Acquisition, which will terminate upon the consummation of this offering.
  (b)   Represents non-cash charges related to equity-based compensation programs, which vary from period to period depending on timing of awards.
  (c)   Reflects the increase in the fair value of contingent liabilities incurred in connection with the ACON Acquisition and the Underground Toys Acquisition.
  (d)   Represents a non-cash adjustment to cost of sales resulting from the ACON Acquisition and the Underground Toys Acquisition.
  (e)   Represents legal, accounting, and other related costs incurred in connection with this offering, the ACON Acquisition, the Underground Toys Acquisition, the Loungefly Acquisition and other potential acquisitions.
  (f)   Represents both unrealized and realized foreign currency (gains) losses on transactions other than in U.S. dollars.

 

(2)  

Each $1.00 increase or decrease in the assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease each of cash and total stockholders’ equity on a

 

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  pro forma basis by approximately $          million, assuming the number of shares offered, as set forth on the cover page of this prospectus, remains the same, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
(3)   Total debt as of June 30, 2017 consists of the Subordinated Promissory Notes and borrowings under our Senior Secured Credit Facilities, net of unamortized discount of $12.1 million. Total debt consists of borrowings under our Senior Secured Credit Facilities net of unamortized discount of $6.4 million and $5.2 million as of December 31, 2016 and 2015, respectively. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Description of Subordinated Promissory Notes” and “—Description of Senior Secured Credit Facilities and “Description of Certain Indebtedness.” Also see our audited consolidated financial statements included elsewhere in this prospectus, which include all liabilities.

 

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UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION

We have derived the unaudited pro forma consolidated statement of operations for the year ended December 31, 2016 set forth below by the application of pro forma adjustments to the audited consolidated financial statements of FAH LLC and subsidiaries included elsewhere in this prospectus. We have derived the unaudited pro forma consolidated statement of operations for the six months ended June 30, 2017 and the unaudited pro forma consolidated balance sheet as of June 30, 2017 set forth below by the application of pro forma adjustments to the unaudited consolidated financial statements of FAH, LLC and subsidiaries included elsewhere in this prospectus.

The unaudited pro forma consolidated statements of operations for the year ended December 31, 2016 and the six months ended June 30, 2017, and the unaudited pro forma consolidated balance sheet as of June 30, 2017, present our consolidated results of operations and financial position to give pro forma effect to all of the Transactions (excluding this offering) described in “Our Organizational Structure,” the sale of shares of Class A common stock in this offering (excluding shares issuable upon exercise of the underwriters’ option to purchase additional shares), and the application of the net proceeds by us and FAH, LLC from this offering and the other transactions described elsewhere in this section, as if all such transactions had been completed as of January 1, 2016 with respect to the unaudited pro forma consolidated statements of operations, and as of June 30, 2017, with respect to the unaudited pro forma consolidated balance sheet. The unaudited pro forma consolidated financial statements reflect pro forma adjustments that are described in the accompanying notes and are based on available information and certain assumptions we believe are reasonable, but are subject to change. We have made, in our opinion, all adjustments that are necessary to present fairly the pro forma financial information.

The pro forma adjustments principally give effect to the following items:

 

    the Transactions (excluding this offering) described in “Our Organizational Structure;”

 

    this offering and the payment by us of fees and expenses related to this offering and the use of a portion of the proceeds by FAH, LLC (from the sale of common units to us using the proceeds of this offering) to repay the Subordinated Promissory Notes in full and to repay a portion of the outstanding borrowings under the Senior Secured Credit Facilities as described in “Use of Proceeds;” and

 

    a provision for federal, state and local income taxes of Funko, Inc. as a taxable corporation at an effective rate of     % and     % for the year ended December 31, 2016 and the six months ended June 30, 2017, respectively, which includes a provision for U.S. federal income taxes and assumes the highest statutory rates applied to income apportioned to each state and local jurisdiction.

The unaudited pro forma consolidated financial information presented assumes no exercise by the underwriters of the option to purchase up to an additional              shares of Class A common stock from us.

As described in greater detail under “Certain Relationships and Related Party Transactions—Tax Receivable Agreement,” in connection with the closing of this offering, we will enter into the Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners that will provide for the payment by Funko, Inc. to the Continuing Equity Owners of 85% of the amount of tax benefits, if any, that Funko, Inc. actually realizes (or in some circumstances is deemed to realize) as a result of (1) increases in tax basis resulting from Funko, Inc.’s purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in connection with this offering, as described under “Use of Proceeds” and any future redemptions funded by Funko, Inc. or exchanges of common units for

 

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Class A common stock described under “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Common Unit Redemption Right,” and (2) certain additional tax benefits attributable to payments under the Tax Receivable Agreement. Due to the uncertainty in the amount and timing of future redemptions or exchanges of common units by the Continuing Equity Owners, the unaudited pro forma consolidated financial information assumes that no future redemptions or exchanges of common units have occurred.

As described in “Our Organizational Structure,” the unaudited pro forma consolidated financial statements reflect the acquisition of the equity interests in FAH, LLC and does not result in a change in the book basis of FAH, LLC as such transactions are between entities under common control.

As a public company, we will be implementing additional procedures and processes for the purpose of addressing the standards and requirements applicable to public companies. We expect to incur additional annual expenses related to these steps and, among other things, additional directors’ and officers’ liability insurance, director fees, reporting requirements of the SEC, transfer agent fees, hiring additional accounting, legal and administrative personnel, increased auditing and legal fees and similar expenses. We have not included any pro forma adjustments relating to these costs. Funko, Inc. was formed on April 21, 2017 and will have no material assets or results of operations until the completion of this offering and therefore its historical financial position is not shown in a separate column in the unaudited pro forma statement of operations.

The unaudited pro forma consolidated financial information is presented for informational purposes only and should not be considered indicative of actual results of operations that would have been achieved had the Transactions, including this offering, been consummated on the dates indicated, and do not purport to be indicative of statements of financial condition data or results of operations as of any future date or for any future period. You should read our unaudited pro forma consolidated financial information and the accompanying notes in conjunction with all of the historical financial statements and related notes included elsewhere in this prospectus and the financial and other information appearing elsewhere in this prospectus, including information contained in “Risk Factors,” “Use of Proceeds,” “Capitalization,” “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

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Funko, Inc. and Subsidiaries

Unaudited Pro Forma Consolidated Balance Sheet

as of June 30, 2017

 

    Historical
FAH, LLC (a)
    Recapitalization
Adjustments (b)
    Pro Forma
FAH, LLC
    Transaction
Adjustments
    Offering
Adjustments
    Pro Forma
Funko, Inc.
 

Assets

      (in thousands)          

Current assets:

           

Cash and cash equivalents

  $ 12,752     $                              $              $           (e)    $          (c)(g)(h)    $               

Accounts receivable, net

    81,629            

Inventory

    57,982            

Prepaid expenses and other current assets

    31,573                      (g)   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current assets

    183,936            

Property and equipment, net

    35,639            

Goodwill

    106,521            

Intangible assets, net

    257,991            

Deferred tax asset

                       (i)     

Other assets

    4,293            
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets

  $ 588,380     $     $     $     $     $  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Liabilities and Members’/Stockholders’ Equity

           

Current liabilities:

           

Line of credit

  $ 51,054     $     $     $     $          (h)    $  

Current portion long-term debt, net of unamortized discount

    16,451                      (h)   

Accounts payable

    45,043            

Accrued royalties

    16,297            

Accrued expenses and other current liabilities

    27,044            

Current portion of Tax Receivable Agreement liability

               

Current portion of contingent consideration

    2,478            
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current liabilities

    158,367            

Long-term debt, net of unamortized discount

    271,559                      (h)   

Deferred rent

    3,464            

Tax Receivable Agreement liability, net of current portion

                       (i)     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities

    433,390            

Commitments and contingencies

           

Members’/stockholders’ equity:

           

Class A units, $1,000 par value; unlimited units authorized; 225,871 units issued and outstanding at June 30, 2017

    225,871                (b)                 (d)(f)     

Common units, no par value; 12,500 units authorized; 11,724 units issued and outstanding at June 30, 2017

               

Senior Preferred units, $1,000 par value; no units authorized, issued, and outstanding at June 30, 2017

               

Home Run units, no par value; 11,724 units authorized; 11,724 units issued and outstanding at June 30, 2017

               

Stockholders’ equity

           

Class A common stock, par value $0.0001 per share

                       (d)               (c)   

Class B common stock, par value $0.0001 per share

                       (e)     

Additional paid-in-capital

    65,588                    (i)               (c)(g)   

Accumulated other comprehensive income

    771            

Accumulated deficit

    (137,240                  (d)(f)               (f)(h)   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Members’/stockholders’ equity attributable to Funko, Inc.

    154,990            

Non-controlling interest

                       (f)               (f)   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities and members’/stockholders’ equity

  $ 588,380     $     $     $     $     $  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying Notes to Unaudited Pro Forma Consolidated Balance Sheet.

 

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Funko, Inc. and Subsidiaries

Notes to Unaudited Pro Forma Consolidated Balance Sheet

 

(a) Funko, Inc. was formed on April 21, 2017 and will have no material assets or results of operations until the completion of this offering and therefore its historical financial position is not shown in a separate column in this unaudited pro forma consolidated balance sheet.

 

(b) In connection with the Transactions, all existing ownership interests (including vested profits interests and all unvested profits interests (subject to common units received in exchange for unvested profits interests remaining subject to their existing time-based vesting requirements)) in FAH, LLC will be converted into common units of FAH, LLC. Existing options to purchase certain ownership interests in FAH, LLC will be converted into options to purchase common units in FAH, LLC.

 

(c) We estimate that the net proceeds to us from this offering, after deducting estimated underwriting discounts and commissions but before estimated offering expenses, of $        million, will be approximately $        million. This amount has been determined based on the assumption that the underwriters’ option to purchase additional shares of our Class A common stock is not exercised. A reconciliation of the gross proceeds from this offering to the net cash proceeds is set forth below:

 

Assumed initial public offering price per share

   $  

Shares of Class A common stock issued in this offering

  
  

 

 

 

Gross proceeds

  

Less: underwriting discounts and commissions and offering expenses (including amounts previously deferred of $        million)

  
  

 

 

 

Net cash proceeds

   $  
  

 

 

 

 

(d) In connection with this offering, the Former Equity Owners will exchange            of their indirect ownership interest in common units of FAH, LLC for              shares of Class A common stock in Funko, Inc. on a one-to-one basis.

 

(e) In connection with this offering, we will issue              shares of Class B common stock to the Continuing Equity Owners (other than the Former Profits Interests Holders), on a one-to-one basis with the number of common units of FAH, LLC they own. Holders of our Class B common stock along with the holders of our Class A common stock, will have certain voting rights as described under “Description of Capital Stock,” but holders of our Class B common stock will not be entitled to receive any distributions from or participate in any dividends declared by our board of directors.

 

(f) Upon completion of the Transactions, we will become the sole managing member of FAH, LLC. Although we will have a minority economic interest in FAH, LLC, we will have the sole voting interest in, and control the management of, FAH, LLC. As a result, we will consolidate the financial results of FAH, LLC and will report a non-controlling interest related to the common units of FAH, LLC held by the Continuing Equity Owners on our consolidated balance sheet. The computation of the non-controlling interest following the consummation of this offering is as follows:

 

     Units      Percentage  

Interest in FAH, LLC by Funko, Inc.

     

Non-controlling interest in FAH, LLC by Continuing Equity Owners

     
  

 

 

    

 

 

 
     
  

 

 

    

 

 

 

If the underwriters were to exercise their option to purchase additional shares of our Class A common stock in full, Funko, Inc. would own     % of the common units of the FAH, LLC and the Continuing Equity Owners would own the remaining     % of the common units of FAH, LLC.

 

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Following the consummation of this offering, the common units of FAH, LLC held by the Continuing Equity Owners, representing the non-controlling interest, will be redeemable at each of their options (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.”

The Transaction adjustments include adjustments to transfer pro forma FAH, LLC members’ deficit to accumulated deficit and report a non-controlling interest equal to the Continuing Equity Owners’ economic interest in FAH, LLC of     % after giving effect to the Former Equity Owners’ exchange of                common units for                shares of Class A common stock. The following table describes such Transaction adjustments ($ in thousands):

 

Non-controlling interest

  

Members deficit—FAH, LLC

   $  

Former Equity Owners’ Class A common stock economic interest in FAH, LLC

  

Members’ deficit attributable to Former Equity Owners’ Class A common stock

  
  

 

 

 

Members’ deficit attributable to Continuing Equity Owners’ Class A common stock

   $  
  

 

 

 

The Offering adjustments include adjustments to report a non-controlling interest equal to the Continuing Equity Owners’ economic interest in FAH, LLC of     %, after giving effect to the issuance of                  shares of Class A common stock in this offering and the Former Equity Owners’ exchange of                common units for                  shares of Class A common stock, based on the pro forma FAH, LLC members’ deficit adjusted for the net proceeds received from the sale of common units to Funko, Inc., less offering expenses paid by FAH, LLC which are included in additional paid-in capital, and the loss on debt repayment.

The following table describes such Offering adjustments ($ in thousands):

 

Non-controlling interest

  

Members deficit—FAH, LLC

   $  

Purchase of FAH, LLC common units with net proceeds of the offering

  

Offering expenses paid by FAH, LLC

  

Profit unit recognition—additional paid-in capital

  

Profit unit recognition—accumulated deficit

  

Accumulated deficit—write off of prorated portion of original issue discount and capitalized finance costs

  
  

 

 

 

FAH, LLC members’ equity after the offering

  

Continuing Equity Owners’ interest in FAH, LLC

  

Members’ deficit attributable to Continuing Equity Owners’ -non-controlling interest

  

Less: Non-controlling interest included in the “Transaction Adjustments” column

  
  

 

 

 

Non-controlling interest—“Offering Adjustments” column

   $  
  

 

 

 

 

(g) We are deferring certain costs associated with this offering, including certain legal, accounting and other related expenses, which have been recorded in prepaid expenses and other assets on our consolidated balance sheet. Upon completion of this offering, these deferred costs will be charged against the proceeds from this offering with a corresponding reduction to additional paid-in capital.

 

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(h) FAH, LLC intends to use the $        million in net proceeds it receives from the sale of common units to Funko, Inc. to repay $        million of outstanding borrowings under our Subordinated Promissory Notes, $        million of outstanding borrowings under our Term Loan A Facility, $        million of outstanding borrowings under our Term Loan B Facility, $        million of outstanding borrowings under our Revolving Credit Facility and the remainder for general corporate purposes. The repayment of a portion of our borrowings under our Term Loan A Facility and Term Loan B Facility resulted in a $        million loss on debt repayment as the result of the write-off of a portion of the unamortized original issue discount and capitalized finance costs.

 

(i) We expect to obtain an increase in the tax basis of our share of the assets of FAH, LLC when common units are redeemed or exchanged by the Continuing Equity Owners and other qualifying transactions. This increase in tax basis may have the effect of reducing the amounts that we would otherwise pay in the future to various tax authorities. The increase in tax basis may also decrease gains (or increase losses) on future dispositions of certain capital assets to the extent tax basis is allocated to those capital assets. In connection with the consummation of this offering, we will enter into the Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners that will provide for the payment by us to the Continuing Equity Owners of 85% of the amount of tax benefits, if any, that we actually realize, or in some cases are deemed to realize, as a result of (i) increases in the tax basis of the assets of FAH, LLC resulting from the purchase of common units in exchange for Class A common stock in connection with the consummation of this offering and any future redemptions or exchanges of common units or any prior sales of interests in FAH, LLC and (ii) certain other tax benefits related to payments made by us under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement.”

The net impact of the adjustments to net deferred taxes and the Tax Receivable Agreement liability of $         has been recorded as an increase to additional paid-in capital, as these adjustments arise from equity transactions of the Company.

The amounts to be recorded for both the net deferred tax assets and the liability for our obligations under the Tax Receivable Agreement have been estimated. All of the effects of changes to both the net deferred tax assets and our obligations under the Tax Receivable Agreement after the date of the purchase will be included in net income. Similarly, the effect of subsequent changes in the enacted tax rates will be included in net income.

 

(j) The reconciliation of FAH, LLC members’ deficit to Funko, Inc. accumulated deficit as of June 30, 2017 is as follows ($ in thousands):

 

Accumulated deficit—“Transaction Adjustments” column

  

Transfer of members’ deficit to accumulated deficit

   $  

Non-controlling interest

  

Compensation expense recognized upon exercise of the outstanding Profit Units

  

Transfer of the par value of the Class A common stock from accumulated deficit to Class A common stock as a result of the exchange of common units by the Former Equity Owners

  
  

 

 

 

Accumulated deficit

  
  

 

 

 

Accumulated deficit—“Offering Adjustments” column

  

Loss on repayment of debt as a result of the write off of the pro rata portion of unamortized original issue discount and capitalized finance costs

  

Offset to the non-controlling interest

  
  

 

 

 

Accumulated deficit—“Offering Adjustments” column

  
  

 

 

 

Total pro forma Funko, Inc. accumulated deficit

   $  
  

 

 

 

 

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Funko, Inc. and Subsidiaries

Unaudited Pro Forma Consolidated Statement of Operations

for the Six Months Ended June 30, 2017

 

     Historical
FAH, LLC (a)
    Transaction
Adjustments
           Offering
Adjustments
           Pro Forma
Funko, Inc.
 
     (in thousands, except per share data)  

Net sales

   $ 203,798     $                         $                         $                   

Cost of sales (exclusive of depreciation and amortization shown separately below)

     130,066              

Selling, general, and administrative expenses

     50,901              (b)     

Acquisition transaction costs

     3,086              

Depreciation and amortization

     14,322              
  

 

 

   

 

 

      

 

 

      

 

 

 

Total operating expenses

     198,375              
  

 

 

   

 

 

      

 

 

      

 

 

 

Income from operations

     5,423              

Interest expense, net

     14,677              (e)     

Other income, net

     (113            (e)     
  

 

 

   

 

 

      

 

 

      

 

 

 

Income (loss) before income taxes

     (9,141            

Income tax expense

     1,024              (c)     
  

 

 

   

 

 

      

 

 

      

 

 

 

Net income (loss)

   $ (10,165   $        $        $  
  

 

 

   

 

 

      

 

 

      

 

 

 

Net income (loss) attributable to non-controlling interests

             (d)          (d)     
  

 

 

   

 

 

      

 

 

      

 

 

 

Net income (loss) attributable to Funko, Inc.

   $ (10,165   $        $        $  
  

 

 

   

 

 

      

 

 

      

 

 

 

Pro forma net income per share data (f):

              

Weighted average shares of Class A common stock outstanding:

              

Basic

              

Diluted

              

Net income available to Class A common stock per share:

              

Basic

              

Diluted

              

See accompanying Notes to Unaudited Pro Forma Consolidated Statement of Operations.

 

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Funko, Inc. and Subsidiaries

Unaudited Pro Forma Consolidated Statement of Operations

for the Year Ended December 31, 2016

 

     Historical
FAH, LLC(a)
     Transaction
Adjustments
           Offering
Adjustments
          Pro Forma
Funko, Inc.
 
     (in thousands, except per share data)  

Net sales

   $ 426,717      $                         $                        $                   

Cost of sales (exclusive of depreciation and amortization shown separately below)

     280,396              

Selling, general, and administrative expenses

     77,525               (b  

Acquisition transaction costs

     1,140              

Depreciation and amortization

     23,509              
  

 

 

    

 

 

      

 

 

     

 

 

 

Total operating expenses

     382,570              
  

 

 

    

 

 

      

 

 

     

 

 

 

Income from operations

     44,147              

Interest expense, net

     17,267               (e  

Other income, net

                   (e  
  

 

 

    

 

 

      

 

 

     

 

 

 

Income (loss) before income taxes

     26,880              

Income tax expense

                   (c  
  

 

 

    

 

 

      

 

 

     

 

 

 

Net income (loss)

   $ 26,880      $        $       $  
  

 

 

    

 

 

      

 

 

     

 

 

 

Net income (loss) attributable to non-controlling interests

              (d)          (d  
  

 

 

    

 

 

      

 

 

     

 

 

 

Net income (loss) attributable to Funko, Inc.

   $ 26,880      $        $       $  
  

 

 

    

 

 

      

 

 

     

 

 

 

Pro forma net income (loss) per share data (f):

              

Weighted average shares of Class A common stock outstanding:

              

Basic

              

Diluted

              

Net income (loss) available to Class A common stock per share:

              

Basic

              

Diluted

              

See accompanying Notes to Unaudited Pro Forma Consolidated Statement of Operations.

 

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Funko, Inc. and Subsidiaries

Notes to Unaudited Pro Forma Consolidated Statements of Operations

 

(a) Funko, Inc. was formed on April 21, 2017 and will have no material assets or results of operations until the completion of this offering and therefore its historical financial position is not shown in a separate column in this unaudited pro forma consolidated statements of operations.

 

(b) Represents the increase in compensation expense we expect to incur following the completion of this offering. We expect to grant            stock options and             restricted stock units to our directors and certain employees in connection with this offering. This amount was calculated assuming the stock options and restricted stock units were granted on January 1, 2016 with the stock options having an exercise price equal to $        per share, the assumed initial public offering price based on the midpoint of the price range set forth on the cover page of this prospectus. The grant date fair values of the stock options were determined using the Black-Scholes valuation model using the following assumptions:

Expected volatility

Expected dividend yield

Expected term (in years)

Risk-free interest rate

 

(c) FAH, LLC has been, and will continue to be, treated as a partnership for U.S. federal and state income tax purposes. As such, income generated by FAH, LLC will flow through to its partners, including us, and is generally not subject to tax at the FAH, LLC level. Following the Transactions, we will be subject to U.S. federal income taxes, in addition to state and local income taxes with respect to our allocable share of any taxable income of FAH, LLC. As a result, the unaudited pro forma consolidated statements of income reflect adjustments to our income tax expense to reflect an effective income tax rate of     % and     % for the year ended December 31, 2016 and the six months ended June 30, 2017, respectively, which were calculated assuming the U.S. federal rates currently in effect and the highest statutory rates apportioned to each applicable state, local and foreign jurisdiction.

The income tax expense for the Offering adjustments is determined using the Continuing Equity Owners’ economic interest in FAH, LLC of     % after giving effect to the issuance of              shares of Class A common stock in this offering and the Former Equity Owners’ exchange of            common units for              shares of Class A common stock, based on the pro forma FAH, LLC income before income taxes adjusted for stock option expense, the loss on repayment of debt and the reduction in interest expense as a result of the repayment of our Subordinated Promissory Notes and a portion of the outstanding borrowings under our Term Loan A Facility, Term Loan B Facility and Revolving Credit Facility. The effective tax rate derived from the face of the unaudited pro forma consolidated statement of income will be lower than the stated effective tax rate as the effective tax rate is only applied to the     % of the income before taxes based on Funko, Inc.‘s economic interest in FAH, LLC. Our pro forma allocable share of taxable income from FAH, LLC was $        million and $        million, and our income tax was $            million and $        million, respectively, for the year ended December 31, 2016 and the six months ended June 30, 2017.

 

(d)

Upon completion of the Transactions, Funko, Inc. will become the sole managing member of FAH, LLC. Although we will have a minority economic interest in FAH, LLC, we will have the sole voting interest in, and control the management of, FAH, LLC. As a result, we will consolidate the financial results of FAH, LLC and will report a non-controlling interest related to the common units of FAH, LLC held by the Continuing Equity Owners on our consolidated statements of income. Following this offering, assuming the underwriters do not exercise their option to purchase additional shares of Class A common stock, Funko, Inc. will own     % of the common units of FAH, LLC and the Continuing Equity Owners will own the remaining     % of the common units of

 

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  FAH, LLC. Net income attributable to non-controlling interest will represent     % of the income before income taxes of Funko, Inc. These amounts have been determined based on the assumption that the underwriters option to purchase              additional shares of Class A common stock is not exercised. If the underwriters exercise their option to purchase additional shares of Class A common stock in full, Funko Inc. will own     % of the common units of FAH, LLC and the Continuing Equity Owners will own the remaining     % of the common units of FAH, LLC and net income attributable to non-controlling interest will represent     % of the income before income taxes of Funko, Inc.

The Transaction adjustments include adjustments to report pro forma FAH, LLC net income attributable to non-controlling interests equal to the Continuing Equity Owners’ economic interest in FAH, LLC of     % after giving effect to the Former Equity Owners’ exchange of            common units for              shares of Class A common stock.

The Offering adjustments include adjustments to report a non-controlling interest equal to the Continuing Equity Owners’ economic interest in FAH, LLC of     %, after giving effect to the issuance of              shares of Class A common stock in this offering and the Former Equity Owners exchange of            common units for              shares of Class A common stock based on the pro forma FAH, LLC net income adjusted for equity-based compensation expense and the loss on repayment of debt and the reduction in interest expense as a result of the repayment of $        million of outstanding borrowings under our Subordinated Promissory Notes, $        million of outstanding borrowings under our Revolving Credit Facility, $        million of outstanding borrowings under our Term Loan A Facility and $        million of outstanding borrowings under our Term Loan B Facility.

 

(e) As described in “Use of Proceeds,” we intend to use the net proceeds from this offering (assuming that the underwriters’ option to purchase              additional shares of our Class A common stock is not exercised) to purchase            common units directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions. FAH, LLC intends to use the $        million in net proceeds it receives from the sale of common units to Funko, Inc. to repay $        million of outstanding borrowings under our Subordinated Promissory Notes, $        million of outstanding borrowings under our Revolving Credit Facility, $        million of outstanding borrowings under our Term Loan A Facility and $        million of outstanding borrowings under our Term Loan B Facility. Accordingly, pro forma adjustments have been made to reflect a reduction in interest expense of $        million and $        million for the year ended December 31, 2016 and the six months ended June 30, 2017, respectively, computed at weighted-average interest rates of     % and     % respectively, in each case, as if the outstanding borrowings had been repaid on January 1, 2016, and a $        million loss on debt repayment for the year ended December 31, 2016, comprised of the write off of unamortized original issue discount and capitalized finance costs.

 

(f)

Pro forma basic net loss per share is computed by dividing the net income available to Class A common stockholders by the weighted-average shares of Class A common stock outstanding during the period. Pro forma diluted net loss per share is computed by adjusting the net loss available to Class A common stockholders and the weighted-average shares of Class A common stock outstanding to give effect to potentially dilutive securities. Shares of our Class B common stock are not entitled to receive any distributions or dividends and have no rights to convert into Class A common stock. When a common unit is exchanged for, at our election, cash or Class A common stock by a Continuing Equity Owner who holds shares of our Class B common stock, such Continuing Equity Owner will be required to surrender a share of Class B common stock, which we will cancel for no consideration. Therefore, we did not include shares of our Class B common stock in the computation of pro forma basic or diluted net loss per share. The following

 

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  table sets forth a reconciliation of the numerators and denominators used to compute pro forma basic and diluted net loss per share (in thousands, except per share data):

 

    Pro Forma  
    Year ended
December 31, 2016
    Six Months ended
June 30, 2017
 

Basic net income (loss) per share:

   

Numerator

   

Net income (loss)

   

Less: Net income (loss) attributable to non-controlling interests

   
 

 

 

   

 

 

 

Net income (loss) attributable to Class A common stockholders—basic

   
 

 

 

   

 

 

 

Denominator

   

Shares of Class A common stock held by Former Equity Owners

   

Shares of Class A common stock sold in this offering (1)

   

Vested portion of Class A options (2)

   
 

 

 

   

 

 

 

Weighted average shares of Class A common stock outstanding—basic

   
 

 

 

   

 

 

 

Basic net income (loss) per share

   
 

 

 

   

 

 

 

Diluted net income (loss) per share:

   

Numerator

   

Net income (loss) attributable to Class A common stockholders—basic

   

Reallocation of net income (loss) assuming conversion of common units (3)

   
 

 

 

   

 

 

 

Net income (loss) attributable to Class A common stockholders—diluted

   
 

 

 

   

 

 

 

Denominator

   

Weighted average shares of Class A common stock outstanding—basic

   

Weighted average effect of dilutive securities (4)

   
 

 

 

   

 

 

 

Weighted average shares of Class A common stock outstanding—diluted

   
 

 

 

   

 

 

 

Diluted net income (loss) per share

   
 

 

 

   

 

 

 

 

  (1) We plan to use a portion of the net proceeds from this offering (assuming that the underwriters’ option to purchase              additional shares of our Class A common stock is not exercised) to purchase            common units directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwritings discounts and commissions and, in turn, Class A common stock in this offering less the underwriting discounts and commissions and, in turn, FAH, LLC intends to use the $        million in net proceeds it receives from the sale of common units to Funko, Inc. to repay $        million of outstanding borrowings under our Subordinated Promissory Notes, $        million of outstanding borrowings under our Revolving Credit Facility, $        million of outstanding borrowings under our Term Loan A Facility and $        million of outstanding borrowings under our Term Loan B Facility.
  (2)

In calculating pro forma basic net income per share for the year ended December 31, 2016 and the six months ended June 30, 2017,                  shares of common units that we expect to grant to our directors and certain employees in connection with this offering that would have vested as of December 31, 2016 have been included. Unvested shares of stock options of            that we expect to grant to our directors and certain employees in

 

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  connection with this offering that would have vested as of December 31, 2016 have not been included as their exercise price is equal to the initial public offering price per share of Class A common stock in this offering and therefore they have no effect on pro forma dilutive net income per share.
  (3) The reallocation of net income (loss) assuming conversion of common units represents the tax effected net income (loss) attributable to non-controlling interest using the effective income tax rates described in footnote (c) and assuming all common units of FAH, LLC were exchanged for Class A common stock at the beginning of the period. The common units of FAH, LLC held by the Continuing Equity Owners are potentially dilutive securities and the computations of pro forma diluted net income (loss) per share assume that all common units of FAH, LLC were exchanged for shares of Class A common stock at the beginning of the period. This adjustment was made for purposes of calculating pro forma diluted net income per share only and does not necessarily reflect the amount of exchanges that may occur subsequent to this offering.
  (4) Includes (i)              outstanding shares of Class A common stock issuable upon the exchange of common units to be held by the Continuing Equity Owners prior to this offering and (ii)              unvested shares of common units/Class A options that we expect to grant to our directors and certain employees in connection with this offering.

 

(g) As described in “Use of Proceeds,” we intend to use the net proceeds from this offering (assuming that the underwriters’ option to purchase              additional shares of our Class A common stock is not exercised) to purchase            common units directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions. FAH, LLC intends to use the $        million in net proceeds it receives from the sale of common units to Funko, Inc. to repay $        million of outstanding borrowings under our Subordinated Promissory Notes, $        million of outstanding borrowings under our Revolving Credit Facility, $        million of outstanding borrowings under our Term Loan A Facility, and $        million of outstanding borrowings under our Term Loan B Facility. Accordingly, pro forma adjustments have been made to reflect a reduction in interest expense of $        million and $        million for the year ended December 31, 2016 and the six months ended June 30, 2017, respectively, computed at weighted-average interest rates of     % and     %, respectively, in each case, as if the outstanding borrowings had been repaid on January 1, 2016, and a $        million loss on debt repayment for the year ended December 31, 2016, comprised of the write off of unamortized original issue discount and capitalized finance costs.

 

(h) We expect to obtain an increase in the tax basis of our share of the assets of FAH, LLC when common units are redeemed or exchanged by the Continuing Equity Owners and other qualifying transactions. This increase in tax basis may have the effect of reducing the amounts that we would otherwise pay in the future to various tax authorities. The increase in tax basis may also decrease gains (or increase losses) on future dispositions of certain capital assets to the extent tax basis is allocated to those capital assets. In connection with the consummation of this offering, we will enter into the Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners that will provide for the payment by us to the Continuing Equity Owners of 85% of the amount of tax benefits, if any, that we actually realize, or in some cases are deemed to realize, as a result of (i) increases in the tax basis of the assets of FAH, LLC resulting from the purchase of common units in exchange for Class A common stock in connection with the consummation of this offering and any future redemptions or exchanges of common units or any prior sales of interests in FAH, LLC and (ii) certain other tax benefits related to payments made by us under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement.”

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION

AND RESULTS OF OPERATIONS

You should read the following discussion and analysis of our financial condition and results of operations together with “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data,” “Unaudited Pro Forma Consolidated Financial Information,” and our consolidated financial statements and related notes included elsewhere in this prospectus. This discussion and analysis reflects our historical results of operations and financial position, and, except as otherwise indicated below, does not give effect to the Transactions or to the completion of this offering. See “Our Organizational Structure.” This discussion contains forward-looking statements based upon current plans, expectations and beliefs involving risks and uncertainties. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth under “Risk Factors” and in other parts of this prospectus.

The following discussion and analysis presents operations and cash flows for two periods, Predecessor and Successor, which relate to the period preceding the ACON Acquisition and the period succeeding the ACON Acquisition, respectively. References to the Successor 2015 Period refer to the period from October 31, 2015 through December 31, 2015 and references to the Predecessor 2015 Period refer to the period from January 1, 2015 through October 30, 2015.

Overview

We are a leading pop culture consumer products company. Our business is built on the principle that almost everyone is a fan of something and the evolution of pop culture is leading to increasing opportunities for fan loyalty. We create whimsical, fun and unique products that enable fans to express their affinity for their favorite “something”—whether it is a movie, TV show, video game, musician or sports team. We infuse our distinct designs and aesthetic sensibility into one of the industry’s largest portfolios of licensed content over a wide variety of product categories, including figures, plush, accessories, apparel and homewares.

We were founded in 1998 as a consumer products company focused on designing and selling nostalgic bobble head figures. In 2005, we were acquired by a small group of investors led by Brian Mariotti, who took over day-to-day operations and has served as our Chief Executive Officer since that time. Under Brian’s leadership, we have significantly broadened and deepened our relationships with content providers. During the first half of 2017, we had active license agreements with approximately 112 different licensors covering over 1,000 properties. Over the same period, we have also diversified our products and brands. Today, we offer over 5,000 products across our product categories.

Domestically, we primarily sell our products to specialty retailers, mass-market retailers, and e-commerce sites. Internationally, we sell our products directly to similar retailers, primarily in Europe, through our subsidiary Funko UK, Ltd., which we formed in December 2016 in connection with the Underground Toys Acquisition. We also sell our products to distributors for sale to small retailers in the United States and in certain countries internationally, typically where we do not currently have a direct presence. We also sell certain of our products directly to consumers through our e-commerce business and, to a lesser extent, at specialty licensing and comic book shows, conventions and exhibitions in cities throughout the United States, including at Comic-Con events.

We have a multi-part strategy to continue to increase net sales. First, we intend to drive growth in net sales at our existing retail customers by expanding shelf space dedicated to our products, continuing to design products that resonate with pop culture fans and increasing the number of retail customers for whom we curate pop culture selections. Second, we intend to expand the number of

 

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retail doors at which our products are sold. While we believe we have opportunities to add new specialty and mass-market retailers, we also plan to selectively target new or underdeveloped sales channels, such as dollar, drug, grocery and convenience stores. Third, given our minimal upfront product development costs, we will continue to increase our product offerings to drive traffic to our retail customers. We continually evaluate product innovations and potential acquisition targets to complement our existing products. For example, both the Underground Toys Acquisition and the Loungefly Acquisition increased our product offerings and product categories, which we believe will provide additional sales opportunities with our existing and new customers.

We generate the majority of our net sales in the United States; however, we are also focused on growing our international business. Net sales generated from customers outside of the United States accounted for approximately 18.8% and 23.8% of our net sales for the years ended December 31, 2016 and 2015, respectively. The Underground Toys Acquisition in January 2017, and sales in Europe through our newly-formed subsidiary, Funko UK, Ltd., is part of this strategy. For additional information regarding net sales generated from each geography, please see Note 16 of the notes to our audited consolidated financial statements included elsewhere in this prospectus.

Our flexible and low-fixed cost production model enables us to go from product design of a figure to the store shelf in as few as 70 days and typically between 110 and 200 days, with a minimal upfront investment for most figures of $5,000 to $7,500 in tooling, molds and internal design costs. Because of the strength of our in-house creative team, we are able to move from product design to pre-selling a new product in as few as 24 hours. This ability, coupled with the valuable data insights we have developed over the past decade and the increasing use of repeated franchise properties by content providers, reduces potential product risk to us.

Our rate of growth during the first half of 2017 was lower than prior periods, largely driven by the slow rate of growth in the second quarter. Our results in the second quarter were primarily impacted by a retail inventory overhang from prior periods which resulted in a slower pace of retail reorders during the second quarter, and the impact of the anniversary of results from our master toy license for Five Nights at Freddy’s. For the six months ended June 30, 2017, we had net sales of $203.8 million, net loss of $10.2 million and Adjusted EBITDA of $31.3 million. For the six months ended June 30, 2016, we had net sales of $176.3 million, net loss of $6.0 million and Adjusted EBITDA of $35.6 million. For the year ended December 31, 2016, we had net sales of $426.7 million, net income of $26.9 million and Adjusted EBITDA of $97.0 million. For the Successor 2015 Period and the Predecessor 2015 Period, we had net sales of $56.6 million and $217.5 million, respectively, net loss of $15.6 million and net income of $27.5 million, respectively, and Adjusted EBITDA of $13.2 million and $62.0 million, respectively. Adjusted EBITDA is a non-GAAP financial measure. For a reconciliation of Adjusted EBITDA to net income (loss), the most closely comparable GAAP financial measure, see “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data.”

Factors Affecting our Business

Growth in the Market for Pop Culture Consumer Products

Our operating results and prospects will be impacted by developments in the market for pop culture consumer products. Our business has benefitted from pop culture trends including (1) technological innovation that has facilitated content consumption and engagement, (2) creation of more quality content, (3) greater cultural prevalence and acceptance of pop culture fandom and (4) increased engagement by fans with pop culture content beyond mere consumption driven by social media and demonstrated by fan-centric experiences, such as Comic-Con International: San Diego and New York Comic Con, and the popularity of eSports. These trends have contributed to significant recent growth in the demand for pop culture products like ours in recent years; however, consumer

 

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demand for pop culture products and pop culture trends can and does shift rapidly and without warning. To the extent we are unable to offer products that appeal to consumers, our operating results will be adversely affected. This is particularly true given the concentration of our sales under certain of our brands, particularly Pop!, which represented approximately 68% and 69% of our net sales across approximately 3,400 and 2,300 different products for the six months ended June 30, 2017 and 2016, respectively, and approximately 64% and 75% of our net sales across approximately 2,700 and 1,700 different products for the years ended December 31, 2016 and 2015, respectively.

Relationships with Content Providers

We generate substantially all of our net sales from products based on intellectual property we license from others. We have strong relationships with many established content providers and seek to establish licensing relationships with newer content providers. For example, in 2016, we introduced a line of products based on the video game property “Five Nights at Freddy’s,” which accounted for sales of approximately $17.1 million, or 8%, of our net sales for the six months ended June 30, 2017, and approximately $63.1 million, or 15%, of our net sales for the year ended December 31, 2016. Our content provider relationships are highly diversified, allowing us to license a wide array of properties and reduce our exposure to any one property. For the six months ended June 30, 2017 and the year ended December 31, 2016, approximately 27% and 36% of our net sales were attributable to our top five properties, respectively.

We believe there is a trend of content providers consolidating their relationships to do more business with fewer licensees. We believe our ability to help maximize the value and extend the relevance of our content providers’ properties has allowed us to benefit from this trend. Although we have a successful track record of renewing and extending the scope of licenses, our license agreements typically have short terms (between two and three years), are not automatically renewable, and, in some cases, give the licensor the right to terminate the license agreement at will. In addition, the efforts of our senior management team have been integral to our relationships with our licensors. Inability to license newer pop culture properties, the termination or lack of renewal of one or more of our license agreements, or the renewal of a license agreement on less favorable terms, could adversely affect our business.

Retail Industry Dynamics; Relationships with Retail Customers

Historically, substantially all of our net sales have been derived from our retail customers and distributors, upon which we rely to reach the consumers who are the ultimate purchasers of our products. We depend on retailers to provide adequate and attractive space for our products and point of purchase displays in their stores. In 2016, we sold our products through over 2,000 U.S. retailers, who collectively have over 25,000 total doors, and also sold our products through distributors internationally which represented 18.8% of 2016 net sales. Our top ten customers represented approximately 45% and 61% of our net sales for the six months ended June 30, 2017 and 2016, respectively, and approximately 63% and 60% of our net sales for the years ended December 31, 2016 and 2015, respectively. In recent years, traditional retailers have been affected by a shift in consumer preferences towards other channels, particularly e-commerce. We believe that this shift may have benefitted our business as retailers dedicated additional shelf space to our products and pop culture consumer products generally to drive additional traffic to their stores and improve sales in previously less productive shelf space. However, our customers make no long-term commitments to us regarding purchase volumes and can therefore freely reduce their purchases of our products. Any reduction in purchases of our products by our retail customers and distributors, or the loss of any key retailer or distributor for any reason could adversely affect our business. In addition, our future growth depends upon our ability to successfully execute our business strategy. See “Risk Factors—Risks Related to Our Business—Our success depends on our ability to execute our business strategy.”

 

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Content Mix

The timing and mix of products we sell in any given quarter or year will depend on various factors, including the timing and popularity of new releases by third-party content providers and our ability to license properties based on these releases. We have diversified our product offerings across property categories. Net sales for the six months ended June 30, 2017 were divided between classic evergreen properties (approximately 41%), movie release properties (approximately 22%), current video game properties (approximately 16%) and current TV properties (approximately 18%). Net sales for the year ended December 31, 2016 were divided between classic evergreen properties (approximately 43%), movie release properties (approximately 24%), current video game properties (approximately 20%) and current TV properties (approximately 12%). We have visibility into the new release schedules of many of our content providers and our expansive license portfolio allows us to dynamically manage new product creation. This allows us to adjust the mix of products based on classic evergreen properties and new releases, depending on the media release cycle. In addition, over time, we have continued to increase our number of active properties. An active property is a property from which we generate sales of products during a given period. For the six months ended June 30, 2017 and 2016, we had sales of our products across 429 and 301 properties, respectively, and for the years ended December 31, 2016 and 2015, we had sales of our products across 396 and 285 properties, respectively.

Our results of operations may also fluctuate significantly from quarter to quarter or year to year depending on the timing and popularity of new product releases and related content releases. Sales of a certain product or group of products tied to particular content can dramatically increase our net sales in any given quarter or year. For example, our net sales for the year ended December 31, 2016 were positively impacted by the introduction of a new line of products based on the video game property “Five Nights at Freddy’s,” described above. A sequel to Five Nights at Freddy’s was released in the fall of 2016 and we continue to see strong performance from this property, for which our license expires at the end of 2018. Our net sales for the year ended December 31, 2015 were also positively impacted by the introduction of a new line of products based on the movie Star Wars Episode VII. In addition, despite our efforts to diversify the properties on which we base our products, if the performance of one or more of these properties fails to meet expectations or are delayed in their release, our operating results could be adversely affected.

Post-Offering Taxation and Expenses

After consummation of this offering, we will become subject to U.S. federal, state and local income taxes with respect to our allocable share of any taxable income of FAH, LLC, and we will be taxed at the prevailing corporate tax rates. In addition to tax expenses, we also will incur expenses related to our operations, as well as payments under the Tax Receivable Agreement, which we expect to be significant. We intend to cause FAH, LLC to make distributions in an amount sufficient to allow us to pay our tax obligations and operating expenses, including distributions to fund any ordinary course payments due under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Distributions.”

In addition, as a public company, we will be implementing additional procedures and processes for the purpose of addressing the standards and requirements applicable to public companies. We expect to incur additional annual expenses related to these steps and, among other things, additional directors’ and officers’ liability insurance, director fees, reporting requirements of the SEC, transfer agent fees, hiring additional accounting, legal and administrative personnel, increased auditing and legal fees and similar expenses. We also expect to recognize certain non-recurring costs as part of our transition to a publicly traded company, consisting of professional fees and other expenses.

 

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Components of our Results of Operations

Net Sales

We sell a broad array of licensed pop culture consumer products across a variety of categories, including figures, plush, accessories, apparel and homewares, primarily to retail customers and distributors. We also sell our products directly to consumers through our e-commerce operations and, to a lesser extent, at specialty licensing and comic book conventions and exhibitions.

Revenue from the sale of our products is recognized when all of the following criteria are met: persuasive evidence of an arrangement exists, there are no uncertainties regarding customer acceptance, the selling price is fixed or determinable, and collectability is reasonably assured. We routinely enter into arrangements with our customers to provide for markdown co-operation advertising and other various allowances and an estimate for those allowances is recorded when revenue is recognized. Sales terms typically do not allow for a right of return except in relation to a manufacturing defect. Shipping costs billed to our customers are included in net sales, while shipping and handling costs, which include inbound freight costs and the cost to ship products to our customers, are typically included in cost of sales.

Cost of Sales

Cost of sales consists primarily of product costs, royalty expenses paid to our licensors and the cost to ship our products, including both inbound freight and outbound products to our customers. Our cost of sales exclude depreciation and amortization.

Our products are primarily produced by third-party manufacturers in China, Vietnam and Mexico. The use of third-party manufacturers enables us to avoid incurring fixed manufacturing costs, while maximizing flexibility, capacity and capability. As part of a continuing effort to reduce manufacturing costs and ensure speed to market, we have historically kept our production concentrated with a small number of manufacturers and factories even as we have grown and diversified. In recent years, we have worked to improve the efficiency of our supply chain to improve our gross margins.

Our product costs and gross margins will be impacted from period to period based on the product mix in any given period. Our plush products tend to have a higher product cost and lower gross margins than our figures. For the six months ended June 30, 2017 and 2016, our product costs were approximately 42.5% and 48.2% of net sales, respectively. For the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period, our product costs were approximately 44.1%, 57.3% and 39.5% of net sales, respectively.

Our royalty costs and gross margins will also be impacted from period to period based on our mix of licensed products sold, as well as a variety of other factors. For the six months ended June 30, 2017 and 2016, our weighted average royalty rate across all of our license agreements was 14.4% and 14.9%, respectively. For the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period, our weighted average royalty rate across all of our license agreements was 15.2%, 16.2% and 14.6% respectively.

Our shipping costs, both inbound and outbound, will fluctuate from period to period based on customer mix due to varying shipping terms and other factors. To the extent we also continue to expand our direct-to-consumer channel through our e-commerce operations, we expect to improve our gross margins in future years.

Selling, General and Administrative Expenses

Selling, general and administrative expenses are primarily driven by wages, commissions and benefits, warehouse, fulfillment (internal and external) and facilities costs, infrastructure and technology

 

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costs, advertising and marketing expenses of our products, including the costs to participate at specialty licensing and comic book conventions and exhibitions, as well as costs to develop promotional video and other online content created for advertising purposes. Credit card fees, insurance, legal expenses, other professional expenses and other miscellaneous operating costs are also included in selling, general and administrative expenses. Selling costs generally correlate to revenue timing and therefore experience similar moderate seasonal trends. We expect general and administrative costs to increase as our business evolves, including the costs of being a public company. However, we expect our selling, general and administrative expenses to generally grow at a slower rate than our net sales growth as we leverage our past investments.

We have invested considerably in general and administrative costs to support the growth and anticipated growth of our business and anticipate continuing to do so in the future. In addition, in connection with this offering, we expect to incur transaction costs and compensation expense as further described under “Unaudited Pro Forma Consolidated Financial Information.” Following this offering, we anticipate a significant increase in accounting, legal and professional fees associated with being a public company as further described above under “—Factors Affecting Our Business—Post-Offering Taxation and Expenses.”

Acquisition Transaction Costs

Acquisition transaction costs represent costs incurred for potential and completed acquisitions. In 2015, we incurred costs related to the ACON Acquisition. In 2016, we incurred costs related to various potential acquisitions. In 2017, we incurred costs related to the Underground Toys Acquisition and the Loungefly Acquisition.

Depreciation and Amortization

Depreciation expense is recognized on a straight-line basis over the estimated useful lives of our property and equipment. Amortization relates to definite-lived intangible assets that are recognized as expensed on a straight-line basis over the estimated useful lives. Our intangible assets, which are being amortized over a range of two to 20 years, are mainly comprised of trade names, customer relationships and intellectual property we acquired in the ACON Acquisition and, to a lesser extent, the Underground Toys Acquisition and the Loungefly Acquisition.

Interest Expense, Net

Interest expense, net includes the cost of our short-term borrowings and long-term debt, including the amortization of debt issuance costs and original issue discounts, net of any interest income earned. Interest expense increased in the six months ended June 30, 2017, primarily as a result of the incurrence of an additional $50.0 million in long-term debt under our Term Loan A Facility (as defined below) in September 2016, the incurrence of $50.0 million in long-term debt under our Term Loan B Facility (as defined below) in January 2017, the incurrence of an additional $20.0 million in long-term debt under our Term Loan A Facility in June 2017 and the issuance of the Subordinated Promissory Notes in the aggregate principal amount of $20.0 million effective June 26, 2017. Interest expense increased significantly in the year ended December 31, 2016, primarily as the result of the incurrence of $175.0 million in long-term debt under our Term Loan A Facility in connection with the ACON Acquisition.

Results of Operations

On October 30, 2015, ACON, through FAH, LLC, an entity formed in contemplation of the transaction, acquired a controlling interest in FHL and its subsidiary, Funko, LLC. As a result of this acquisition, which we refer to as the ACON Acquisition, the financial information for the period after

 

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October 30, 2015 represents the consolidated financial information of the “Successor” company. Prior to and including October 30, 2015, the consolidated financial statements include the accounts of the “Predecessor” company. Financial information in the Predecessor period principally relates to FHL and its subsidiary Funko, LLC.

Due to the change in the basis of accounting resulting from the application of the acquisition method of accounting, the Predecessor’s consolidated financial statements and the Successor’s consolidated financial statements are not necessarily comparable. The new basis of accounting primarily impacted the values of our inventory, property and equipment, net and certain intangible assets, and resulted in increased cost of sales and depreciation and amortization expense. See Note 3 to our audited consolidated financial statements included elsewhere in this prospectus for additional information. However, the change in basis resulting from the ACON Acquisition did not materially impact net sales and, for this metric, we believe combining Predecessor and Successor results provides meaningful information. Accordingly, for net sales, the discussion below presents the combined results of the Predecessor and the Successor for the full year ended December 31, 2015. Such combination was performed by mathematical addition and is not a presentation made in accordance with GAAP, although we believe it provides a meaningful method of comparison for this metric. The combined net sales data is being presented for analytical purposes only. This combined data (1) may not reflect the actual results we would have achieved absent the ACON Acquisition, (2) may not be predictive of future results of operations and (3) should not be viewed as a substitute for the financial results of the Predecessor and the Successor presented in accordance with GAAP. For all other metrics, to the extent that the change in basis had a material impact on our results, we have disclosed such impact below. As the Predecessor and Successor have the same accounting policies, no conforming accounting policy adjustments were necessary.

Six Months Ended June 30, 2017 Compared to Six Months Ended June 30, 2016

The following table sets forth information comparing the components of net loss for the six months ended June 30, 2017 and 2016.

 

     Successor     Period over Period
Change
 
     Six Months
Ended
June 30,
2017
    Six Months
Ended
June 30,
2016
    Dollar     Percentage  
     (in thousands, except percentages)  

Net sales

   $ 203,798     $ 176,261     $ 27,537       15.6

Cost of sales (exclusive of depreciation and amortization shown separately below)

     130,066       125,799       4,267       3.4  

Selling, general and administrative expenses

     50,901       37,087       13,814       37.2  

Acquisition transaction costs

     3,086       349       2,737       784.2  

Depreciation and amortization

     14,322       11,174       3,148       28.2  
  

 

 

   

 

 

   

 

 

   

 

 

 

Income from operations

     5,423       1,852       3,571       192.8  

Interest expense, net

     14,677       7,879       6,798       86.3  

Other income, net

     (113           (113     n/a  
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss before income taxes

     (9,141     (6,027     (3,114     51.7  

Income tax expense

     1,024             1,024       n/a  
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ (10,165   $ (6,027   $ (4,138     68.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Net Sales

Net sales were $203.8 million for the six months ended June 30, 2017, an increase of 15.6%, compared to $176.3 million for the six months ended June 30, 2016. Net sales increased primarily as a

 

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result of the continued expansion of products and properties in our portfolio. For the six months ended June 30, 2017, we had an average of $0.6 million net sales per active property. This was a 19% decrease compared to our average net sales per active property for the six months ended June 30, 2016. This decline in average net sales per active property was more than offset by an increase in total active properties. For the six months ended June 30, 2017, we had sales of our products across 429 properties, up 43% compared to the 301 properties across which we had sales in the six months ended June 30, 2016. Net sales during the six months ended June 30, 2017 were also negatively impacted by a retail inventory overhang from prior periods, which resulted in a slower pace of retail reorders during our second quarter.

Cost of Sales (exclusive of depreciation and amortization)

Cost of sales were $130.1 million for the six months ended June 30, 2017, an increase of 3.4%, compared to $125.8 million for the six months ended June 30, 2016. Cost of sales increased primarily as a result of the continued growth in sales, due primarily to an increase in total active properties and increased international sales as discussed above. Cost of sales was further impacted by the application of purchase accounting in connection with the ACON Acquisition and the Underground Toys Acquisition, which required inventory to be recorded at estimated fair value. This step-up resulted in an increase to inventory of $22.1 million and $2.6 million based on the estimated fair value as of the date of the ACON Acquisition and the Underground Toys Acquisition, respectively. As a result, during the six months ended June 30, 2017 and 2016, cost of sales increased by $2.6 million and $13.4 million, respectively.

Gross margin (exclusive of depreciation and amortization), calculated as net sales less cost of sales as a percentage of net sales, was 36.2% for the six months ended June 30, 2017, an increase of 7.6 percentage points, compared to 28.6% for the six months ended June 30, 2016. Gross margin for the six months ended June 30, 2017 was positively impacted primarily by the absence of recording of inventory at estimated fair value in connection with the ACON Acquisition and, to a lesser extent, a decrease in the weighted average royalty rate due to property mix.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were $50.9 million for the six months ended June 30, 2017, an increase of 37.2%, compared to $37.1 million for the six months ended June 30, 2016. The increase was primarily due to an increase in personnel costs of $9.2 million, professional fees of $3.6 million, equity-based compensation expense of $2.6 million, administrative costs of $2.2 million, facilities and rent costs of $1.7 million, advertising costs of $1.2 million and sales commissions of $0.3 million. These increases were partially offset by a decrease in expense related to contingent consideration of $6.6 million, which was related to the ACON Acquisition, and which was recorded in 2016. Sales commissions and advertising costs increased in line with our increase in net sales. Other increases in personnel costs, professional fees, and administrative, facilities and rent costs increased as a result of our growth, which required additional headcount and related facilities and infrastructure to support the historical and anticipated future growth of our business.

Selling, general and administrative expenses were 25.0% of net sales for the six months ended June 30, 2017, an increase of 4.0 percentage points, compared to 21.0% of net sales for the six months ended June 30, 2016. This increase was primarily due to our continued investment in headcount, facilities and infrastructure.

Acquisition Transaction Costs

Transaction costs related to acquisitions were $3.1 million for the six months ended June 30, 2017, compared to $0.3 million for the six months ended June 30, 2016. Transaction costs for the six months

 

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ended June 30, 2017 related to the Underground Toys Acquisition and the Loungefly Acquisition. Transaction costs for the six months ended June 30, 2016 related to potential acquisition targets.

Depreciation and Amortization

Depreciation and amortization expense was $14.3 million for the six months ended June 30, 2017, an increase of 28.2%, compared to $11.2 million for the six months ended June 30, 2016. The increase in depreciation and amortization primarily related to the increase in depreciation on tooling and molds as a result of the expansion of our product lines and leasehold improvements at our corporate offices and warehouse facilities, and an increase in amortization related to the Underground Toys Acquisition and the Loungefly Acquisition.

Interest Expense, Net

Interest expense, net was $14.7 million for the six months ended June 30, 2017, an increase of 86.3%, compared to $7.9 million for the six months ended June 30, 2016. The increase in interest expense, net was primarily attributable to the incurrence of an additional $50.0 million in long-term debt under our Term Loan A Facility in September 2016, the incurrence of $50.0 million in long-term debt under our Term Loan B Facility in January 2017, the incurrence of $20.0 million in long-term debt under our Term Loan A Facility in June 2017, and the issuance of the Subordinated Promissory Notes in the aggregate principal amount of $20.0 million effective June 26, 2017.

Year Ended December 31, 2016 Compared to the Successor 2015 Period and the Predecessor 2015 Period

The following table sets forth information comparing the components of net income (loss) for the year ended December 31, 2016 and the Successor 2015 Period and the Predecessor 2015 Period.

 

    Successor   Predecessor  
    Year Ended
December 31,
2016
  Period from
October 31,
2015 through
December 31,
2015
  Period from
January 1,
2015 through
October 30,
2015
 
    (in thousands)

Net sales

  $     426,717      $     56,565     $       217,491  

Cost of sales (exclusive of depreciation and amortization shown separately below)

    280,396       44,485       131,621  

Selling, general and administrative expenses

    77,525       13,894       37,145  

Acquisition transaction costs

    1,140       7,559       13,301  

Depreciation and amortization

    23,509       3,370       5,723  
 

 

 

 

 

 

 

 

 

 

 

 

Income (loss) from operations

    44,147       (12,743     29,701  

Interest expense, net

    17,267       2,818       2,202  
 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss)

  $ 26,880     $ (15,561   $ 27,499  
 

 

 

 

 

 

 

 

 

 

 

 

Net Sales

Net sales were $426.7 million for the year ended December 31, 2016, an increase of 55.7%, compared to $56.6 million for the Successor 2015 Period and $217.5 million for the Predecessor 2015 Period. Net sales increased primarily as a result of the continued development of our products as well as across more properties. For the year ended December 31, 2016, we had an average of $1.1 million net sales per active property, a 12% increase compared to our average net sales per active property

 

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for the year ended December 31, 2015. For the year ended December 31, 2016, we had sales of our products across 396 properties, up 39% compared to the 285 properties across which we had sales in the year ended December 31, 2015. This increase in average net sales per active property along with the increase in total properties was a key driver of our net sales increase. This expansion across our product and property portfolio also led to an increased footprint within our retail customers, primarily as a result of increased shelf space, as well as growth in the number of our retail customers. For example, we experienced a $63.1 million increase as a result of a line of products based on the video game property “Five Nights at Freddy’s,” which was introduced in 2016.

Cost of Sales (exclusive of depreciation and amortization)

Cost of sales was $280.4 million for the year ended December 31, 2016. Cost of sales was $44.5 million for the Successor 2015 Period and $131.6 million for the Predecessor 2015 Period. Cost of sales increased primarily as a result of continued sales growth, due primarily to an increase in total active properties as discussed above. Cost of sales was further impacted by the application of purchase accounting in connection with the ACON Acquisition, which required inventory to be recorded at estimated fair value. This step up resulted in an increase to inventory of $22.1 million based on the estimated fair value as of the date of the ACON Acquisition. As a result, during the year ended December 31, 2016 and the Successor 2015 Period, cost of sales increased by $13.4 million and $8.7 million, respectively.

Gross margin (exclusive of depreciation and amortization), calculated as net sales less cost of sales as a percentage of net sales, was 34.3% for the year ended December 31, 2016. Gross margin (exclusive of depreciation and amortization) was 21.4% for the Successor 2015 Period and 39.5% for the Predecessor 2015 Period. For the year ended December 31, 2016 and the Successor 2015 Period, gross margin was negatively impacted by 3.1 percentage points and 15.4 percentage points, respectively, due to recording inventory at the estimated fair value in connection with the ACON Acquisition.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were $77.5 million for the year ended December 31, 2016. Selling, general and administrative expenses were $13.9 million for the Successor 2015 Period and $37.1 million for the Predecessor 2015 Period. The increase was primarily due to the increase of personnel costs of $14.2 million, contingent consideration of $7.0 million, administrative costs of $3.0 million, advertising costs of $2.7 million, bad debt expense of $2.6 million, sales commissions of $1.6 million, and other costs of $7.4 million. These increases were partially offset by a decrease in equity-based compensation of $12.0 million. The increase in contingent consideration was a result of the ACON Acquisition and represents the adjustment to the fair value of the contingent consideration recorded in the year ended December 31, 2016. Other increases in personnel costs, professional fees and other costs were primarily due to our overall growth, which required additional headcount, facilities and infrastructure to support our historical growth and anticipated future growth of the business. Commissions and advertising costs increased in line with the increase in net sales. The decrease of equity-based compensation was primarily due to a significant amount of expense recorded in the Predecessor 2015 Period related to the ACON Acquisition.

Selling, general and administrative expenses were 18.2% of net sales for the year ended December 31, 2016. Selling, general and administrative expenses were 24.6% of net sales for the Successor 2015 Period and 17.1% of net sales for the Predecessor 2015 Period. This decrease was primarily due to our significant revenue growth in excess of the cost increases, partially offset by the impact of the ACON Acquisition and continued investment in headcount, facilities and infrastructure.

 

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Acquisition Transaction Costs

Transaction costs related to acquisitions were $1.1 million for the year ended December 31, 2016. Transaction costs related to acquisitions were $7.6 million for the Successor 2015 Period and $13.3 million for the Predecessor 2015 Period. Transaction costs for the year ended December 31, 2016 related to the Underground Toys Acquisition and potential acquisition targets. Transaction costs in both the Successor 2015 Period and Predecessor 2015 Period related to the costs incurred in connection with the ACON Acquisition, which were comprised of change of control fees related to our license agreements, legal fees and other professional costs for due diligence and other work.

Depreciation and Amortization

Depreciation and amortization expense was $23.5 million for the year ended December 31, 2016. Depreciation and amortization expense was $3.4 million for the Successor 2015 Period and $5.7 million for the Predecessor 2015 Period. The increase in depreciation and amortization primarily related to the amortization of our intangible assets from the ACON Acquisition. During the application of the acquisition method of accounting, we recorded the fair value of certain intangible assets. The impact of such adjustments increased depreciation and amortization expense for the year ended December 31, 2016 and the Successor 2015 Period by $12.9 million and $3.6 million, respectively.

Interest Expense, Net

Interest expense, net was $17.3 million for the year ended December 31, 2016. Interest expense, net was $2.8 million for the Successor 2015 Period and $2.2 million for the Predecessor 2015 Period. The increase in interest expense, net was primarily attributable to $175.0 million in long-term debt incurred under our Term Loan A Facility in connection with the ACON Acquisition, along with a $50.0 million increase in Term Loan A Facility borrowings in September 2016.

Quarterly Results of Operations

The following tables set forth selected unaudited quarterly statements of operations data for each of the eight quarters in the period ended June 30, 2017. The information for each of these quarters has been prepared on the same basis as FAH, LLC’s audited consolidated financial statements included elsewhere in this prospectus and, in the opinion of management, includes all adjustments, which include only normal recurring adjustments, necessary for the fair presentation of the results of operations for these periods in accordance with GAAP. This data should be read in conjunction with FAH, LLC’s audited consolidated financial statements and related notes included elsewhere in this prospectus. These quarterly operating results are not necessarily indicative of FAH, LLC’s operating results for a full year or any future period.

 

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    Three Months Ended (unless otherwise noted)  
    Successor     Predecessor  
    Jun. 30,
2017
    Mar. 31,
2017
    Dec. 31,
2016
    Sept. 30,
2016
    Jun. 30,
2016
    Mar. 31,
2016
    Oct. 31,
2015

through
Dec. 31,
2015
    Oct. 1,
2015
through
Oct. 30,
2015
    Sept. 30,
2015
 
          (unaudited)  
          (in thousands)  

Net sales

  $ 104,746     $ 99,052     $ 132,412     $ 118,044     $ 101,287     $ 74,974     $ 56,565     $ 35,691     $ 84,745  

Cost of sales (exclusive of depreciation and amortization)

    66,005       64,061       82,813       71,784       70,310       55,489       44,485       23,411       49,971  

Selling, general, and administrative expenses

    25,809       25,092       21,744       18,695       20,034       17,053       13,894       14,130       10,060  

Net income (loss)

    (4,538     (5,627     15,754       17,153       1,009       (7,036     (15,561     (16,711     22,377  

Adjusted

EBITDA (1)

    17,791       13,493       30,360       30,956       22,758       12,886       13,170       8,605       26,020  

 

(1)   The following table reconciles Adjusted EBITDA to the most directly comparable GAAP financial performance measure, which is net income (loss). Please see footnote 1 to “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data” for our definition of Adjusted EBITDA and why we consider it useful.

 

    Three Months Ended (unless otherwise noted)  
    Successor     Predecessor  
    Jun. 30,
2017
    Mar. 31,
2017
    Dec. 31,
2016
    Sept. 30,
2016
    Jun. 30,
2016
    Mar. 31,
2016
    Oct. 31,
2015

through
Dec. 31,
2015
    Oct. 1,
2015
through
Oct. 30,
2015
    Sept. 30,
2015
 
          (in thousands)  

Net income (loss)

  $ (4,538   $ (5,627   $ 15,754     $ 17,153     $ 1,009     $ (7,036   $ (15,561   $ (16,711   $ 22,377  

Income tax expense

    1,024                                                  

Interest expense, net

    7,692       6,985       5,182       4,206       3,928       3,951       2,818       1,961       693  

Depreciation and amortization

    7,588       6,734       6,266       6,069       5,762       5,412       3,370       216       1,511  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

EBITDA

  $ 11,766     $ 8,092     $ 27,202     $ 27,428     $ 10,699     $ 2,327     $ (9,373   $ (14,534   $ 24,581  

Adjustments:

                   

Monitoring fees (a)

    501       480       374       374       439       310       272       531       1,305  

Equity-based compensation (b)

    2,973       772       618       583       583       583       4,484       9,925        

Earnout fair market value adjustment (c)

          8       503       1,427       2,954       3,676       1,540              

Inventory step-up (d)

    1,129       1,501                   7,933       5,502       8,688              

Acquisition transaction costs and other expenses (e)

    1,541       2,634       1,663       1,144       150       488       7,559       12,683       134  

Foreign currency transaction (gain) loss (f)

    (119     6                                            
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

  $ 17,791     $ 13,493     $ 30,360     $ 30,956     $ 22,758     $ 12,886     $ 13,170     $ 8,605     $ 26,020  

 

(a)   Represents monitoring fees paid pursuant to a management services agreement with Fundamental Capital, LLC, which was terminated in 2015 in connection with the ACON Acquisition, and a management services agreement with ACON that was entered into in connection with the ACON Acquisition, which will terminate upon the consummation of this offering.
(b)   Represents non-cash charges related to equity-based compensation programs, which vary from period to period depending on timing of awards.
(c)   Reflects the increase in the fair value of contingent liabilities incurred in connection with the ACON Acquisition and the Underground Toys Acquisition.
(d)   Represents a non-cash adjustment to cost of sales resulting from the ACON Acquisition and the Underground Toys Acquisition.
(e)   Represents legal, accounting, and other related costs incurred in connection with this offering, the ACON Acquisition, the Underground Toys Acquisition, the Loungefly Acquisition and other potential acquisitions.
(f)   Represents both unrealized and realized foreign currency (gains) losses on transactions in currencies other than in U.S. dollars.

 

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Seasonality

While our customers in the retail industry typically operate in highly seasonal businesses, we have historically experienced only moderate seasonality in our business. For the years ended December 31, 2016 and December 31, 2015, approximately 58.7% and 64.6%, respectively, of our net sales were made in the third and fourth quarters, primarily in the period from August through November, as our customers build up their inventories in anticipation of the holiday season. Generally, the first quarter of the year is the lowest shipment and sales in our business and in the retail and toy industries generally and therefore it is also the least profitable quarter due to the various fixed costs of the business. However, the rapid growth we have experienced in recent years may have masked the full effects of seasonal factors on our business to date, and as such, seasonality may have a greater effect on our results of operations in future periods. See “Risk Factors—Risks Related to our Business—Our operating results may fluctuate from quarter to quarter and year to year due to the seasonality of our business, as well as due to the timing of new product releases.”

Liquidity and Capital Resources

As of June 30, 2017, we had $12.8 million of cash and cash equivalents and $25.6 million of working capital, which is calculated as current assets minus current liabilities, compared with $6.2 million of cash and cash equivalents and $54.9 million of working capital as of December 31, 2016. Working capital is impacted by the seasonal trends of our business and the timing of new product releases. See “—Seasonality.”

Sources of Funds

Our primary requirements for liquidity and capital are working capital, inventory management, capital expenditures, debt service and general corporate needs. Historically, these cash requirements have been met through cash provided by operating activities, cash and cash equivalents and borrowings under our Senior Secured Credit Facilities. For a description of our Senior Secured Credit Facilities, see “—Senior Secured Credit Facilities.” Additionally, in the six months ended June 30, 2017, the year ended December 31, 2016 and Successor 2015 Period, we also received contributions from members of FAH, LLC as further described below under “—Historical Cash Flows”; however, after the consummation of this offering, we do not anticipate receiving any additional contributions from members of FAH, LLC.

Uses of Funds

Additional future liquidity needs may include public company costs, the redemption right held by the Continuing Equity Owners that they may exercise from time to time (should we elect to exchange such common units for a cash payment), payments under the Tax Receivable Agreement and state and federal taxes to the extent not sheltered by our tax assets, including those arising as a result of purchases, redemptions or exchanges of common units for Class A common stock. The Continuing Equity Owners may exercise their redemption right for as long as their common units remain outstanding. Although the actual timing and amount of any payments that may be made under the Tax Receivable Agreement will vary, we expect that the payments that we will be required to make to the Continuing Equity Owners will be significant. Any payments made by us to the Continuing Equity Owners under the Tax Receivable Agreement will generally reduce the amount of overall cash flow that might have otherwise been available to us or to FAH, LLC and, to the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, the unpaid amounts generally will be deferred and will accrue interest until paid by us; provided, however, that nonpayment for a specified period may constitute a material breach of a material obligation under the Tax Receivable Agreement and therefore may accelerate payments due under the Tax Receivable Agreement. For a

 

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discussion of the Tax Receivable Agreement, see “Certain Relationships and Related Party Transactions—Tax Receivable Agreement” and “Unaudited Pro Forma Financial Information.” For a discussion of the Continuing Equity Owners’ redemption right, see “Certain Relationships and Related Party Transactions—FAH LLC Agreement.”

Notwithstanding our obligations under the Tax Receivable Agreement, we believe that our sources of liquidity and capital will be sufficient to finance our continued operations, growth strategy, our planned capital expenditures and the additional expenses we expect to incur as a public company for at least the next 12 months. However, we cannot assure you that our cash provided by operating activities, cash and cash equivalents or cash available under our Senior Secured Credit Facilities will be sufficient to meet our future needs. If we are unable to generate sufficient cash flows from operations in the future, and if availability under our Senior Secured Credit Facilities is not sufficient, we may have to obtain additional financing. If we obtain additional capital by issuing equity, the interests of our existing stockholders will be diluted. If we incur additional indebtedness, that indebtedness may contain significant financial and other covenants that may significantly restrict our operations. We cannot assure you that we could obtain refinancing or additional financing on favorable terms or at all. See “Risk Factors—Risks Related to our Business—We may not be able to secure additional financing on favorable terms, or at all, to meet our future capital needs.”

Historical Cash Flows

The following table shows summary cash flows information for the six months ended June 30, 2017 and 2016, the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period:

 

    Successor     Predecessor  
    Six
Months
Ended
June 30,
2017
    Six
Months
Ended
June 30,
2016
    Year Ended
December 31,
2016
    Period from
October 31,
2015 through
December 31,
2015
    Period from
January 1,
2015
through
October 30,
2015
 
    (in thousands)  

Net cash provided by operating activities

  $ 15,750     $ 16,389     $  49,468     $  14,110     $ 8,538  

Net cash used in investing activities

    (46,764     (8,014     (22,105     (244,421     (10,043

Net cash provided by (used in) financing activities

    37,627       3,339       (45,613     244,456       11,390  

Effect of exchange rates on cash and cash equivalents

   
(22

   

 
                 

Net increase (decrease) in cash and cash equivalents

    6,591       11,714       (18,250     14,145       9,885  

Operating Activities.     Our net cash provided by operating activities consists of net income (loss) adjusted for certain non-cash items, including depreciation and amortization, equity-based compensation and fair value adjustments to contingent consideration, as well as the effect of changes in working capital and other activities.

For the six months ended June 30, 2017, net cash provided by operating activities was $15.8 million and was comprised of a net loss of $10.2 million, increased by $20.5 million related to non-cash adjustments, primarily related to depreciation and amortization, accretion of long-term debt discount and equity-based compensation. Changes in working capital increased cash provided by operating activities by $5.4 million. The increase in working capital positively impacted net cash through an increase in accounts payable of $8.6 million, decreases in accounts receivable and

 

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inventory of $5.3 million and $3.8 million, respectively, and an increase in accrued expenses and other liabilities of $5.5 million, partially offset by an increase in prepaid expenses and other assets of $11.1 million and a decrease in accrued royalties of $6.7 million.

For the six months ended June 30, 2016, net cash provided by operating activities was $16.4 million and was comprised of net loss of $6.0 million, increased by $19.6 million related to non-cash adjustments, primarily related to depreciation and amortization, contingent consideration and equity-based compensation. Changes in working capital increased cash provided by operating activities by $2.8 million. The increase in working capital favorably impacted net cash primarily through a decrease in inventory of $20.9 million, partially offset by an increase in accounts receivable of $14.8 million.

For the year ended December 31, 2016, net cash provided by operating activities was $49.5 million and was comprised of net income of $26.9 million, increased by $32.8 million related to non-cash adjustments, primarily related to depreciation and amortization, contingent consideration and equity-based compensation. Other operating changes in working capital decreased cash provided by operating activities by $10.2 million. The decrease in working capital unfavorably impacted net cash through increases in accounts receivable of $33.6 million and in prepaid expenses and other assets of $8.5 million, partially offset by decreases in accounts payable and accrued royalties of $14.7 million and $7.7 million, respectively.

For the Successor 2015 Period, net cash provided by operating activities was $14.1 million and was comprised of a net loss of $15.6 million, increased by $9.8 million related to non-cash adjustments, primarily related to depreciation and amortization, contingent consideration and equity-based compensation. Changes in working capital increased cash provided by operating activities by $19.9 million. The increase in working capital favorably impacted net cash through a decrease in inventory of $10.2 million and a decrease in accounts receivable of $6.1 million, and further favorably impacted net cash through an increase in accrued royalties of $8.0 million, partially offset by a $1.9 million increase in accounts payable and a $2.6 million increase in other accrued expenses.

For the Predecessor 2015 Period, net cash provided by operating activities was $8.5 million and was comprised of net income of $27.5 million, increased by $16.4 million related to non-cash adjustments, primarily depreciation and amortization and equity-based compensation. Changes in working capital decreased cash provided by operating activities by $35.3 million. The decrease in working capital unfavorably impacted net cash through an increase in accounts receivable of $36.1 million, an increase in inventory of $18.0 million, and an increase in prepaid expenses and other assets of $6.0 million, partially offset by increases in accounts payable of $16.7 million and other accrued expenses of $8.1 million.

Investing Activities.     Our net cash used in investing activities primarily consists of acquisitions, net of cash and cash equivalents, and purchase of property and equipment.

For the six months ended June 30, 2017, net cash used in investing activities was $46.8 million and was primarily comprised of initial cash consideration of $12.6 million and $15.8 million for the Underground Toys Acquisition and the Loungefly Acquisition, respectively. Additionally, $18.3 million of net cash used in investing activities was for the purchase of property and equipment and primarily consisted of $10.3 million for the purchase of property and equipment related to tooling and molds for the expansion of product lines and $5.9 million for leasehold improvements related to the buildout of our new headquarters.

For the six months ended June 30, 2016, net cash used in investing activities was $8.0 million and was primarily for the purchase of property and equipment related to tooling and molds for the expansion of product lines.

 

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For the year ended December 31, 2016, net cash used in investing activities was $22.1 million and was primarily comprised of the purchase of property and equipment related to tooling and molds as a result of our expansion of product lines and, to a lesser extent, from leasehold improvements to our existing and new headquarters.

For the Successor 2015 Period, net cash used in investing activities was $244.4 million, which was primarily related to the ACON Acquisition.

For the Predecessor 2015 Period, net cash used in investing activities was $10.0 million and was primarily comprised of $9.0 million for the purchase of property and equipment related to tooling and molds as a result of our expansion of product lines.

Financing Activities.     Our financing activities primarily consist of proceeds from the issuance of long-term debt, the repayment of long-term debt, payments and borrowing under our line of credit facility, debt issuance costs and contributions from, and distributions to, members and the payment of contingent consideration. After the consummation of this offering, we do not anticipate any financing activity related to contributions from members.

For the six months ended June 30, 2017, net cash provided by financing activities was $37.6 million, primarily related to $59.0 million of borrowings, net of payments under the Term Loan Facilities, a net increase of $44.3 million of borrowings under the Revolving Credit Facility, the issuance of the Subordinated Promissory Notes in the aggregate principal amount of $20.0 million and a $5.0 million contribution from certain members of FAH, LLC, partially offset by $72.8 million of distributions to the members of FAH, LLC and $18.0 million of cash used for contingent consideration payments related to the ACON Acquisition.

For the six months ended June 30, 2016, net cash provided by financing activities was $3.3 million, primarily related to a $15.0 million contribution from ACON and a net increase of $5.3 million of borrowings under the Revolving Credit Facility, partially offset by $13.7 million of distributions to certain members of FAH, LLC and principal payments of $3.3 million on our Term Loan A Facility borrowings.

For the year ended December 31, 2016, net cash used in financing activities was $45.6 million, primarily related to $70.4 million of distributions to the members of FAH, LLC, $36.9 million of cash used for contingent consideration payments related to the ACON Acquisition, partially offset by a net increase of $40.0 million of net cash proceeds from Term Loan A Facility borrowings, a net increase of $6.7 million of Revolving Credit Facility borrowings and a $15.0 million contribution from certain members of FAH, LLC.

For the Successor 2015 Period, net cash provided by financing activities was $244.5 million, primarily from $125.6 million of contributions from members, and $149.7 million of net cash from proceeds from Term Loan A Facility borrowings, partially offset by a net decrease in borrowings under our Revolving Credit Facility and other debt issuance costs and related party note repayments. After the consummation of this offering, we do not anticipate any additional contributions from members of FAH, LLC.

For the Predecessor 2015 Period net cash provided by financing activities was $11.4 million, primarily from $20.9 million of cash proceeds from net borrowing under or then existing revolving credit facility and $3.2 million of cash proceeds from the exercise of equity based options, partially offset by distributions to members of $12.2 million.

 

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Description of Subordinated Promissory Notes

In connection with the 2016 Earnout Payment (as described under the section captioned “Certain Relationships and Related Party Transactions—Related Party Agreements in Effect Prior to this Offering—ACON Acquisition”), FAH, LLC issued promissory notes payable to certain of its members, effective as of June 26, 2017, in the aggregate principal amount of $20.0 million, which we refer to as the Subordinated Promissory Notes. Borrowings under the Subordinated Promissory Notes accrue interest at a rate equal to 11.0% per year for the first 90 days after their effective date, increasing to 13.0% per year 91 days after such effective date and 15.0% per year 181 days after such effective date. Accrued interest on the Subordinated Promissory Notes is due and payable annually on each anniversary of the effective date, beginning on June 26, 2018, and may be capitalized or paid in cash (subject to the terms of a subordination agreement with our senior lenders). The unpaid principal balance of the Subordinated Promissory Notes, together with all accrued and unpaid interest, is due and payable on the earlier of (1) 180 days after the payment in full of the obligations under the Senior Secured Credit Facilities, and (2) the consummation of this offering. We may voluntarily prepay the outstanding borrowings under the Subordinated Promissory Notes, without premium or penalty, but together with all accrued and unpaid interest, subject to the terms of the Subordination Agreement and certain other requirements, including, among other things, availability of at least $15.0 million under the Revolving Credit Facility after giving effect to such prepayment.

Description of Senior Secured Credit Facilities

On October 30, 2015, in connection with the ACON Acquisition, FAH, LLC, FHL and Funko, LLC, which we refer to collectively as the Borrowers, entered into a credit agreement with PNC Bank, National Association, as administrative agent, Cerebus Business Finance, LLC, as collateral agent, and the other lenders party to the credit agreement, which provided for a $175.0 million term loan facility, which we refer to as the Term Loan A Facility, and a $50.0 million asset-based revolving credit facility (including a $3.0 million letter of credit sublimit), which we refer to as the Revolving Credit Facility and, together with the Term Loan A Facility and the Term Loan B Facility (as defined below), the Senior Secured Credit Facilities. Proceeds from the Term Loan A Facility were used to finance a portion of the purchase price for the ACON Acquisition, refinance outstanding indebtedness, pay related fees and expenses and fund working capital and other general corporate purposes of the Borrowers.

On September 8, 2016, we entered into an amendment to the credit agreement to, among other things, increase borrowings under the Term Loan A Facility by $50.0 million, permit FAH, LLC to make distributions to its direct and indirect investors with proceeds from the additional borrowings, change the interest rate applicable to borrowings under the Revolving Credit Facility. Proceeds from the additional Term Loan A Facility borrowings were used to fund a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management.

On January 17, 2017, we entered into an additional amendment to the credit agreement to, among other things, provide for an additional $50.0 million term loan facility, which we refer to as the Term Loan B Facility, increase commitments under the Revolving Credit Facility to $80.0 million, and permit FAH, LLC to make a distribution to its direct and indirect investors with proceeds from the Term Loan B Facility. Proceeds from the Term Loan B Facility were used to fund a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain of our executive officers and other employees. In connection with this amendment, we issued warrants to the lenders to purchase an aggregate of 1,774 Class A units and 94 common units of FAH, LLC.

 

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On June 26, 2017 and June 28, 2017, we entered into additional amendments to the credit agreement to, among other things, (1) permit FAH, LLC to enter into the subordinated loan documents in connection with the Subordinated Promissory Notes, (2) increase borrowings under the Term Loan A Facility by $20.0 million, (3) increase commitments under the Revolving Credit Facility to $100.0 million and (4) make changes to certain covenants and definitions. Proceeds from the additional Term Loan A Facility borrowings were used to fund a portion of the purchase price for the Loungefly Acquisition and to pay related fees and expenses.

Borrowings under the Term Loan A Facility accrue interest at an annual rate equal to, at our option, either (1) the Reference Rate plus a margin of 6.25%, or (2) the LIBOR Rate plus a margin of 7.25%. The “Reference Rate” is defined as the greatest of (1) a commercial lending rate publicly announced by the reference bank, (2) the federal funds open rate plus 0.50% per year, and (3) the one-month LIBOR published in the Wall Street Journal plus 1.00% per year, subject to a 3.00% floor. The “LIBOR Rate” is defined as the applicable London Interbank Offered Rate for U.S. dollar deposits, subject to a 1.00% floor, divided by 1.00 minus the maximum effective reserve percentage for Eurocurrency funding.

Borrowings under the Term Loan B Facility accrue interest at an annual rate equal to, at our option, either (1) the Reference Rate plus a margin of 9.00% per year, or (2) the LIBOR Rate plus a margin of 10.00% per year.

The Term Loan A Facility is payable in quarterly installments of $2.35 million per quarter. The Term Loan B Facility is payable in monthly installments of $1.0 million per month; provided that we may forego any installment payment due with respect to the Term Loan B Facility on or prior to December 31, 2017 by providing notice to the administrative agent and paying an installment waiver fee of $110,000 on or prior to the date such installment payment would have been due. The remaining unpaid balance on the Term Loan Facilities, together with all accrued and unpaid interest, is due and payable on the earlier of October 30, 2021 and the date all commitments under the Revolving Credit Facility are terminated. As of June 30, 2017, we had $227.0 million principal amount outstanding under the Term Loan A Facility (net of unamortized discount of $6.1 million) and $41.0 million principal amount outstanding under the Term Loan B Facility (net of unamortized discount of $6.0 million).

Borrowings under the Revolving Credit Facility accrue interest at a rate equal to the one-month LIBOR published in The Wall Street Journal plus a margin of 2.50% per year. Under the terms of the Revolving Credit Facility, we can borrow up to an amount equal to the lesser of (1) the Borrowing Base, as defined in the credit agreement, and (2) $100.0 million. The amount available for borrowing under the Revolving Credit Facility may also be reduced by certain reserve amounts that may be established by the administrative agent from time to time. We are required to pay an unused line fee to the lenders under the Revolving Credit Facility in respect of the unutilized commitments thereunder at a rate of 0.375% per year. The outstanding principal amount of borrowings under the Revolving Credit Facility becomes due and payable on October 30, 2021. As of June 30, 2017, we had $51.1 million outstanding under the Revolving Credit Facility, no letters of credit outstanding and $15.4 million remaining available for borrowing.

The Senior Secured Credit Facilities also provide for an excess cash flow payment following the end of each fiscal year, such that the Borrowers are required to prepay the outstanding principal amount of all loans under the Senior Secured Credit Facilities in an aggregate amount equal to 60% of excess cash flow for such fiscal year if the senior leverage ratio is greater than or equal to 2.75:1.00, which percentage is reduced to 35% if the senior leverage ratio is less than 2.75:1.00 but greater than or equal to 2.00:1.00, and to 0.0% if the senior leverage ratio is less than 2.00:1.00. After such time as we have voluntarily prepaid at least $10.0 million in term loans (excluding any excess cash flow prepayments), the excess cash flow prepayment percentages will be reduced to 50.0% (for a senior

 

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leverage ratio of greater than or equal to 2.75:1.00), 25.0% (for a senior leverage ratio of less than 2.75:1.00 but greater than or equal to 2.00:1.00), and 0.0% (for a senior leverage ratio of less than 2.00:1.00). In addition, after such time as we have voluntarily prepaid at least $10.0 million in term loans (excluding any excess cash flow prepayments), the amount of any required excess cash flow prepayment may be reduced by the aggregate principal amount of all additional voluntary term loan prepayments made during such fiscal year. We did not make any excess cash flow prepayments for the six months ended June 30, 2017 or the year ended December 31, 2016.

The Senior Secured Credit Facilities are collateralized by substantially all of the assets of, and the equity interests held by, each Loan Party, subject to certain exceptions. The Senior Secured Credit Facilities also contain financial covenants and certain restrictive covenants, including restrictions on dividend payments and other distributions, with which the Borrowers (and any subsidiary guarantors that may become party to the credit agreement in the future) must comply during the term of the credit agreement. The credit agreement provides for customary conditions to borrowing, covenants and events of defaults. As of June 30, 2017, the Borrowers were in compliance with all covenants under the Senior Secured Credit Facilities.

For more information on our Senior Secured Credit Facilities, see “Description of Certain Indebtedness—Senior Secured Credit Facilities.”

Contractual Obligations

The following table sets forth our contractual obligations as of December 31, 2016:

 

    2017     2018     2019     2020     2021     Thereafter     Total  
    (in thousands)  

Long-term debt and related interest (1)

  $ 26,513     $ 25,794     $ 25,074     $ 24,399     $ 195,568     $     $ 297,348  

Operating leases

    4,760       4,839       4,445       4,642       4,007       14,943       37,636  

Minimum royalty obligations (2)

    7,690       12,384       200                         20,274  

Revolving Credit Facility (3)

    6,729                                     6,729  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 45,692     $ 43,017     $ 29,719     $ 29,041     $ 199,575     $ 14,943     $ 361,987  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1)   We estimated interest payments through the maturity of our Senior Secured Credit Facilities by applying the interest rate of 8.25% in effect as of December 31, 2016 under our Term Loan A Facility. See Note 10 of our audited consolidated financial statements included elsewhere in this prospectus for additional information.
(2)   Represents minimum guaranteed royalty payments under licensing agreements.
(3)   Represents the amount owed as of December 31, 2016 under our Revolving Credit Facility.

Subsequent to December 31, 2016, on January 17, 2017, we amended the credit agreement governing our Senior Secured Credit Facilities to, among other things, provide for an additional $50.0 million Term Loan B Facility and increase commitments under the Revolving Credit Facility to $80.0 million. In June 2017, we further amended the credit agreement to, among other things, increase borrowings under the Term Loan A Facility by $20.0 million and increase commitments under the Revolving Credit Facility to $100.0 million.

Effective June 26, 2017, we also issued the Subordinated Promissory Notes, in the aggregate principal amount of $20.0 million. The Subordinated Promissory Notes are scheduled to mature on the earlier of (1) 180 days after the payment in full of the obligations under our Senior Secured Credit Facilities, and (2) the consummation of this offering. See “—Description of Subordinated Promissory Notes.”

 

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Off-Balance Sheet Arrangements

As of June 30, 2017, we did not have any off-balance sheet arrangements, except for those disclosed in the contractual obligation table which were entered into in the normal course of business.

Recent Accounting Pronouncements

In January 2017, the Financial Accounting Standards Board, or the FASB, issued an Accounting Standards Update, or an ASU, to simplify the test for goodwill impairment and removes step 2 from the goodwill impairment test. Early adoption is permitted, but will be effective for annual or any interim goodwill impairment tests for fiscal years beginning after December 15, 2019. Early adoption is permitted for interim or annual goodwill impairment tests performed after January 1, 2017. We are currently evaluating the impact of this standard on our consolidated financial statements.

In January 2017, the FASB issued guidance that clarified the definition of a business to assist with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses and refines the definition of the term output. Early adoption is permitted but the guidance will be effective for annual periods beginning after December 15, 2017. The guidance is not expected to have an impact on our consolidated financial statements.

In February 2016, the FASB issued guidance related to lease accounting to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. The new guidance requires lessees to recognize all leases with a term of more than 12 months as lease assets and lease liabilities. A modified retrospective transition approach is required for leases existing at, or entered into after, the earliest period presented. The new standard is effective for fiscal years beginning after December 15, 2018, with early adoption permitted. We are evaluating the impact the adoption of this standard will have on our consolidated financial statements.

In May 2014, the FASB issued a comprehensive new revenue recognition standard. The new standard allows for a full retrospective approach to transition or a modified retrospective approach. This guidance is effective for fiscal years beginning after December 15, 2017, with some limited early adoption permitted. We are currently evaluating the method of adoption we plan to use and the effect the standard is expected to have on our consolidated financial statements.

Recently Adopted Accounting Standards

In March 2016, the FASB issued an ASU which simplifies various aspects of the accounting for share-based payments. The guidance requires companies to recognize excess tax benefits and deficiencies for share-based payments in the statement of operations when the awards vest or are settled and reflected in operating cash flows rather than recorded in equity and reported in financing cash flows. The guidance allows for the employer to withhold up to the maximum statutory tax rates in the applicable jurisdictions without triggering liability accounting. The guidance also allows for a policy election to account for forfeitures as they occur rather than on an estimated basis. We adopted the new standard effective January 1, 2017. The adoption of this standard did not have a material impact on our condensed consolidated financial statements.

In September 2015, the FASB issued an ASU to simplify the accounting for adjustments made to provisional amounts recognized in a business combination. The guidance eliminates the requirement to retrospectively account for those adjustments and requires companies to recognize the adjustments to provisional amounts identified during the measurement period in the reporting period in which the adjustments are determined. The guidance is effective for fiscal years beginning after December 15, 2016, and interim periods within the fiscal years beginning after December 15, 2017. We adopted ASU 2015-16 in the first quarter of fiscal 2017.

 

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In July 2015, the FASB issued guidance simplifying the measurement of inventory. This standard requires entities that use inventory methods other than the last-in, first-out, or LIFO, or retail inventory method to measure inventory at the lower of cost or net realizable value. We adopted the new standard effective January 1, 2017. The adoption of this standard did not have a material impact on our condensed consolidated financial statements.

In April 2015, the FASB issued guidance about a customer’s accounting for fees paid in a cloud computing arrangement. If a cloud computing arrangement includes a software license, then the customer should account for the software license element of the arrangement consistent with the acquisition of other software licenses. If the arrangement does not include a software license, the customer should account for the arrangement as a service contract. We adopted this guidance on a prospective basis for the year ended December 31, 2016. The adoption of this standard did not have a material impact on our consolidated financial statements.

In April 2015, the FASB issued new guidance which required the reclassification of debt issuance costs as a deduction from Long-term debt on the consolidated balance sheets. We adopted this guidance for the year ended December 31, 2015, with full retrospective application, as required. The adoption only affects the presentation of our consolidated balance sheet.

In August 2014, the FASB issued new guidance which requires management to perform interim and annual assessments of an entity’s ability to continue as a going concern within one year and to provide certain footnote disclosures if there is substantial doubt about an entity’s ability to continue as a going concern. We adopted this standard for the year ended December 31, 2016.

Critical Accounting Policies and Estimates

We prepare our consolidated financial statements in conformity with GAAP. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. Critical accounting policies are those that management believes are both most important to the portrayal of our financial condition and operating results, and require management’s most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. We base our estimates on historical experience, outside advice from parties believed to be experts in such matters, and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Judgments and uncertainties affecting the application of those policies may result in materially different amounts being reported under different conditions or using different assumptions. Our significant accounting policies can be found in Note 2 to our audited consolidated financial statements included elsewhere in this prospectus. We consider the following policies to be the most critical in understanding the judgments that are involved in preparing our consolidated financial statements.

Revenue Recognition and Sales Allowance

Revenue from the sale of our products is recognized when all of the following criteria are met: (1) persuasive evidence of an arrangement exists; (2) there are no uncertainties regarding customer acceptance; (3) the selling price is fixed or determinable; and (4) collectability is reasonably assured. The majority of revenue is recognized upon shipment of products to the customer.

We routinely enter into arrangements with our customers to provide sales incentives, and provide allowances for returns and defective merchandise. Such programs are based primarily on customer

 

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purchases and specified factors relating to sales to consumers. While the majority of sales adjustments are readily determinable at period end and do not require estimates, certain sales adjustments require us to make estimates. In making these estimates, we consider all available information, including the overall business environment, historical trends and information from customers. Sales incentives and allowances for returns and defective merchandise are recorded as sales adjustments and reduce revenue in the period the related revenue is recognized.

Amounts received prior to satisfying the revenue recognition criteria are recorded as deferred revenue on our consolidated balance sheets. Deferred revenue is classified as a current liability based on the expectation of recognition within 12 months following the date of each balance sheet. Sales terms do not allow for a right of return except in relation to a manufacturing defect.

Sales taxes collected on behalf of governmental authorities are recorded on a net basis and excluded from revenue.

Royalties

We enter into agreements for rights to licensed trademarks and characters for use in our products. These licensing agreements require the payment of royalty fees to the licensor based on a percentage of revenue. Many licensing agreements also require minimum royalty commitments. When royalty fees are paid in advance, we record these payments as a prepaid asset, either current or long-term based on when we expect to receive revenues under the related licensing agreement. If we determine that it is probable that the expected returns will not be realized, a reserve is recorded against the prepaid asset for the non-recoverable portion. As of June 30, 2017, we recorded a prepaid asset of $12.4 million, net of a reserve of $0.9 million. As of December 31, 2016, we recorded a prepaid asset of $6.9 million, net of a reserve of $0.6 million.

We record royalty liability as revenues are earned based on the terms of the licensing agreement. In situations where a minimum commitment is not expected to be met based on expected revenues, we will accrue up to the minimum amount when it is reasonably certain that revenues generated will not meet the minimum commitment. Royalty and license expense is recorded as cost of sales on the consolidated statements of operations. Royalty expenses for the six months ended June 30, 2017 and 2016 were $29.3 million and $26.2 million, respectively. Royalty expenses for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period were $64.7 million, $9.2 million and $31.6 million, respectively.

Inventory

Inventory consists primarily of figures, plush and accessories and other finished goods, and is accounted for using the first-in, first-out, or FIFO, method. We maintain reserves for excess and obsolete inventories to reflect the inventory balance at the lower of cost or market value. This valuation requires us to make judgments, based on currently available information, about the likely method of disposition, such as through sales to customers, or liquidation, and expected recoverable value of each disposition category. We estimate obsolescence based on assumptions regarding future demand. Inventory costs include direct product costs and freight costs. As a result of the ACON Acquisition, the Underground Toys Acquisition and the Loungefly Acquisition, inventory was adjusted to fair value as of October 31, 2015, January 27, 2017 and June 28, 2017 respectively. See Note 3 to our audited consolidated financial statements and our unaudited consolidated financial statements included elsewhere in this prospectus.

Goodwill and Intangible Assets

Goodwill represents the excess of the purchase price over the net amount of identifiable assets acquired and liabilities assumed in a business combination measured at fair value. We evaluate

 

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goodwill for impairment annually on October 1 of each year and upon the occurrence of triggering events or substantive changes in circumstances that could indicate a potential impairment by assessing qualitative factors or performing a quantitative analysis in determining whether it is more likely than not that the fair value of the net assets is below their carrying amounts.

Intangible assets acquired in a business combination are recognized separately from goodwill and are initially recognized at their fair value at the acquisition date. Intangible assets acquired include intellectual property (product design), customer relationships, and trade names. These are definite-lived assets and are amortized on a straight-line basis over their useful lives. Intangible assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets might not be recoverable. Conditions that would necessitate an impairment assessment include a significant decline in the observable market value of an asset, a significant change in the extent or manner in which an asset is used, or any other significant adverse change that would indicate that the carrying amount of an asset or group of assets may not be recoverable.

Equity-Based Compensation

We measure and recognize expense for our equity-based compensation granted to employees and directors based on the fair value of the awards on the grant date. The fair value of option awards is estimated at the grant date using the Black-Scholes option pricing model that requires management to apply judgment and make estimates, including:

 

    Volatility —this is estimated based on historical volatilities of a representative group of publicly traded consumer product companies with similar characteristics

 

    Risk-free interest rate —this is the U.S. Treasury rate as of the grant date having a term equal to the expected term of the award

 

    Expected term —the expected term is calculated based on management’s estimate of the average time to a liquidity event

 

    Dividend yield —we do not plan to pay dividends in the foreseeable future

Equity-based compensation expense is recognized on a straight-line basis over the vesting period of the award. We estimate that forfeitures will be immaterial, based on there being no historical forfeitures and based on employee turnover and expectations of future exercise behavior.

Income Taxes

FAH, LLC is a limited liability company and is treated as a partnership for U.S. federal and most applicable state and local income tax purposes. As a result, it is not liable for U.S. federal or state and local income taxes in most jurisdictions in which we operate, and the income, expenses, gains and losses are reported on the returns of our members. It is subject to state and local income tax in certain jurisdictions in which it is not treated like a partnership, where it pays an immaterial amount of taxes.

After the consummation of this offering, pursuant to the FAH LLC Agreement, FAH, LLC will generally make pro rata tax distributions to its members in an amount sufficient to fund all or part of their tax obligations with respect to the taxable income of FAH, LLC that is allocated to them and possibly in excess of such amount. See “Certain Relationships and Related Party Transactions—Tax Receivable Agreement.”

After the consummation of this offering, we will become subject to U.S. federal, state and local income taxes with respect to our allocable share of any taxable income of FAH, LLC and will be taxed at the prevailing corporate tax rates. In addition to tax expenses, we also will incur expenses related to

 

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our operations, plus payments under the Tax Receivable Agreement, which will be significant. We intend to cause FAH, LLC to make distributions in an amount sufficient to allow us to pay our tax obligations and operating expenses, including distributions to fund any ordinary course payments due under the Tax Receivable Agreement. See “Certain Relationships and Related Party Transactions.”

Jumpstart Our Business Startups Act of 2012

The JOBS Act permits us, as an “emerging growth company,” to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We are choosing to “opt out” of this provision and, as a result, we will adopt new or revised accounting standards upon or prior to required public company adoption dates. This decision to opt out of the extended transition period under the JOBS Act is irrevocable.

Quantitative and Qualitative Disclosures of Market Risk

We are exposed to market risk from changes in interest rates, foreign currency and inflation. All of these market risks arise in the normal course of business, as we do not engage in speculative trading activities. The following analysis provides quantitative information regarding these risks.

Interest Rate Risk

Our operating results are subject to risk from interest rate fluctuations on our Senior Secured Credit Facilities, which carry variable interest rates. Interest rate risk is the exposure to loss resulting from changes in the level of interest rates and the spread between different interest rates. Our Senior Secured Credit Facilities include Term Loan Facilities (consisting of a Term Loan A Facility and a Term Loan B Facility) and a Revolving Credit Facility with advances tied to a borrowing base and which bear interest at a variable rates. Because our Senior Secured Credit Facilities bear interest at variable rates, we are exposed to market risks relating to changes in interest rates. Interest rate risk is highly sensitive due to many factors, including U.S. monetary and tax policies, U.S. and international economic factors and other factors beyond our control. As of June 30, 2017, we had $319.1 million of variable rate debt outstanding under our Senior Secured Credit Facilities, consisting of $227.0 million outstanding under the Term Loan A Facility (net of unamortized discount of $6.1 million), $41.0 million of variable rate debt outstanding under the Term Loan B Facility (net of unamortized discount of $6.0 million) and $51.1 million in outstanding variable rate borrowings under our Revolving Credit Facility. Based on June 30, 2017 debt levels, an increase or decrease of 1% in the effective interest rate would cause an increase or decrease in interest expense of approximately $0.7 million over the next 12 months. We do not use derivative financial instruments for speculative or trading purposes, but this does not preclude our adoption of specific hedging strategies in the future.

Foreign Currency Risk

Prior to December 31, 2016, all of our product sales, inventory purchases, and operating expenses were denominated in U.S. dollars. We therefore did not have any foreign currency risk associated with these activities. In January 2017, we acquired certain assets of Underground Toys Limited and now sell directly to certain of our customers in Europe, the Middle East and Africa through our newly formed subsidiary, Funko UK, Ltd. The functional currency of all of our entities is the U.S. dollar, other than Funko UK, Ltd., which is the British pound. While currently our inventory purchases for Funko UK, Ltd. are in U.S. dollars, their product sales will primarily be in British pounds and euros. Additionally, Funko UK, Ltd. incurs a portion of its operating expenses in British pounds. Therefore, our results of operations and cash flows are, therefore, subject to fluctuations due to changes in foreign currency exchange rates, principally the pound and euro. However, we believe that the exposure to foreign currency fluctuation from product sales and operating expenses is immaterial at this time as the related product sales and

 

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costs do not constitute a significant portion of our total net sales and expenses. As we grow our operations, our exposure to foreign currency risk could become more significant. To date, we have not entered into any foreign currency exchange contracts and currently do not expect to enter into foreign currency exchange contracts for trading or speculative purposes.

Impact of Inflation

Our results of operations and financial condition are presented based on historical cost. While it is difficult to accurately measure the impact of inflation due to the imprecise nature of the estimates required, we believe the effects of inflation, if any, on our historical results of operations and financial condition have been immaterial. We cannot assure you, however, that our results of operations and financial condition will not be materially impacted by inflation in the future.

 

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BUSINESS

Funko: At the Nexus of Pop Culture

We are a leading pop culture consumer products company. Our business is built on the principle that almost everyone is a fan of something and the evolution of pop culture is leading to increasing opportunities for fan loyalty. We create whimsical, fun and unique products that enable fans to express their affinity for their favorite “something”—whether it is a movie, TV show, video game, musician or sports team. We infuse our distinct designs and aesthetic sensibility into one of the industry’s largest portfolios of licensed content over a wide variety of product categories, including figures, plush, accessories, apparel and homewares. With our unique style, expertise in pop culture, broad product distribution and highly accessible price points, we have developed a passionate following for our products that has underpinned our growth. We believe we sit at the nexus of pop culture—content providers value us for our broad network of retail customers, retailers value us for our broad portfolio of licensed pop culture products and pop culture insights, and consumers value us for our distinct, stylized products and the content they represent. We believe our innovative product design and market positioning have disrupted the licensed product markets and helped to define today’s pop culture products category.

Pop culture pervades modern life and almost everyone is a fan of something. In the past, pop culture fandom was often associated with stereotypical images of fans from narrow demographics, such as Star Trek fans attending conventions to speak Klingon to each other or friends getting together to play Dungeons & Dragons. Today, more quality content is available and technology innovation has made content accessible anytime, anywhere. As a result, the breadth and depth of pop culture fandom resembles, and in many cases exceeds, the type of fandom previously associated only with sports. Everyday interactions at home, work or with friends are increasingly influenced by pop culture.

You may have experienced pop culture through:

 

    gathering with friends at the office to talk about the latest episode of Game of Thrones…or hiding from them because you haven’t watched it yet;

 

    waiting in line for the midnight showing of the latest Star Wars movie release;

 

    binge watching an entire season of Stranger Things on Netflix with your family;

 

    experiencing Coachella via social media;

 

    watching Bugs Bunny with your children on Saturday morning;

 

    debating with your friends whether the Hunger Games books or movies are better;

 

    attending a Frozen-themed birthday party; or

 

    wearing your favorite quarterback’s jersey.

 

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We have invested strategically in our relationships with key constituents in pop culture. Content providers value us for our broad network of retail customers and retailers value us for our broad portfolio of licensed pop culture products, pop culture insights and ability to drive consumer traffic. Consumers, who value us for our distinct, stylized products, remain at the center of everything we do.

 

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    Content Providers :    We have strong licensing relationships with many established content providers, such as Disney, HBO, LucasFilm, Marvel, the National Football League and Warner Brothers. We strive to license every pop culture property that we believe is relevant to consumers. We currently have licensed over 1,000 properties, which we believe represents one of the largest portfolios in our industry, and from which we can create multiple products based on each character within those properties. Content providers trust us to create unique, stylized extensions of their intellectual property that extend the relevance of their content with consumers through ongoing engagement, helping to maximize the lifetime value of their content. We believe we have benefited from a trend of content providers consolidating their relationships to do more business with fewer licensees. Our track record of obtaining licenses from content providers, together with our proven ability to renew and extend the scope of our licenses, demonstrates the trust content providers place in us.

 

    Retail Channels :     We sell our products through a diverse network of retail customers across multiple retail channels, including specialty retailers, mass-market retailers and e-commerce sites. We can provide our retail customers a customized product mix designed to appeal to their particular customer bases. Our current retail customers include Amazon, Barnes & Noble, Entertainment Earth, GameStop, Hot Topic, Target and Walmart in the United States, and Smyths Toys and Tesco internationally. In 2016, we sold our products through over 2,000 U.S. retailers, who collectively have over 25,000 total doors, and through distributors internationally, which represented 18.8% of 2016 net sales. Retailers recognize the opportunity presented by the demand for pop culture products and are continuing to dedicate additional shelf space to our products and the pop culture category. For example, based on public filings, GameStop, a specialty video game retailer, generated $494 million in 2016 net sales from its collectibles business, an increase of 60% compared to 2015. Additionally, some of our retail customers, such as Target and Walmart, view us as pop culture experts, and we help them manage their pop culture category. We believe we drive meaningful traffic to our retail customers’ stores because our products have their own built-in fan base, are refreshed regularly creating a “treasure hunt” shopping experience for consumers, and are often supplemented with exclusive, limited-time products that are highlighted on social media. We believe these merchandising strategies create a sense of urgency with consumers that encourages repeat visits to our retail customers.

 

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    Consumers :    Fans are increasingly looking for ways to express their affinity for and engage with their favorite pop culture content. Over time, many of our consumers evolve from occasional buyers to more frequent purchasers, whom we categorize as enthusiasts or collectors. We estimate that enthusiasts, who are more engaged in pop culture, and collectors, who regularly purchase our products and self-identify as collectors, each make up approximately one-third of our customers. We create products to appeal to a broad array of fans across consumer demographic groups—men, women, boys and girls—not a single, narrow demographic. We currently offer over 5,000 products across our product categories. Our products are generally priced under $10, which allows our diverse consumer base to express their fandom frequently and impulsively. We continue to introduce innovative products designed to facilitate fan engagement at different price points and styles. In addition, our fans routinely express their passion for our products and brands through social media and live pop culture events, such as Comic-Con or Star Wars Celebration.

We have developed a nimble and low-fixed cost production model. The strength of our in-house creative team and relationships with content providers, retailers and third-party manufacturers allows us to move from product concept to pre-selling a new product in as few as 24 hours. We typically have a new figure on the store shelf between 110 and 200 days and can have it on the shelf in as few as 70 days. As a result, we can dynamically manage our business to balance current content releases and pop culture trends with content based on classic evergreen properties, such as Mickey Mouse or classic Batman. This has allowed us to deliver significant growth while lessening our dependence on individual content releases.

Our financial performance reflects the strong growth of our business. From 2014 to 2016, we expanded our net sales, net income and Adjusted EBITDA at a 100%, a 17% and an 86% compound annual growth rate, or CAGR, respectively. We achieved this growth without reliance on a singular “hit” property as no single property accounted for more than 15% of annual net sales during that period. We believe our strong growth and profitability reflect our pop culture consumer products leadership.

 

 

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The following table sets forth net income (loss) and Adjusted EBITDA as a percentage of net sales.

 

     Years Ended December 31,  
             2014             Predecessor
    2015    
    Successor
    2015    
            2016          

Net income (loss)

     18     13     (28 )%      6

Adjusted EBITDA

     26     29     23     23

Adjusted EBITDA is a non-GAAP financial measure. For a reconciliation of Adjusted EBITDA to net income, the most directly comparable GAAP financial performance measure, see “Selected Historical and Unaudited Pro Forma Consolidated Financial and Other Data.”

Our History

We were founded in 1998 as a consumer products company focused on designing and selling nostalgic bobble head figures. In 2005, we were acquired by a small group of investors led by Brian Mariotti, who took over day-to-day operations and has served as our Chief Executive Officer since that time. A long-time fan of pop culture, Brian had a vision of growing our company into a comprehensive purveyor for pop culture consumer products. Brian recognized the value in building a diverse portfolio of licenses and we began assembling a library of licenses, including licenses with Disney and LucasFilm. From there, we continued to build our license catalog, while continuing to develop and refine our stylized designs and expand our sales channels. In 2010, the Pop! brand debuted and, that same year, our products were first sold by Barnes & Noble and Hot Topic.

In May 2013, Fundamental Capital, LLC acquired a controlling interest in us, and we began to invest in and strengthen our creative and management teams. In October 2015, ACON acquired a controlling interest in us, and under their guidance we have continued to scale and grow our company, all the while keeping our mission and corporate culture firmly focused on what our business was built on—pop culture. As the industry has grown and evolved, fueled by the evolution of content and technological innovation, we have continually strived to stay at the forefront of its expansion and plan to continue to grow our business with it.

The Pop Culture Industry: The Forces at Work

Pop culture encompasses virtually everything that someone can be a fan of—movies, TV shows, video games, music and sports. The global licensed pop culture product industry in which we compete sits within the global licensed entertainment and character products market, which had $113 billion in total sales in 2016. We believe that many retailers have seen traffic decline across traditional consumer categories. In contrast, demand for pop culture content, consumer products and experiences has grown rapidly. We believe the increasing influence of pop culture and the strength of the pop culture industry is evidenced by:

 

    60 movie franchises each grossing more than $1 billion worldwide, and the average number of franchise films included in the top ten annual grossing movies from 2000 through 2015 was 6.6 films, up from 2.5 franchise films in the 1990s;

 

    3.2 million total interactions across both Facebook and Twitter about each new episode of The Walking Dead in 2016;

 

    47% increase in live concert ticket sales in North America from 1996 to 2015; and

 

    43 million viewers watching the League of Legends championship in 2016, a number that is 1.4 times that of the viewership of the NBA Finals that year, and an increase of 19% from 2015.

 

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The pop culture industry is being driven by several major forces. Technology advances have made it easier to access, consume and engage with content. Content providers have produced more quality content to drive fan engagement, often with a focus on franchise properties. Dedicated, active and enduring fan bases have emerged across the pop culture landscape. These fans seek out opportunities to interact with their favorite content and with like-minded fans through social media and content-centric experiences. At the same time, social norms have shifted, making fandom culturally accepted and mainstream. These trends reinforce one another leading to a substantial increase in pop culture fandom and to significant growth in the industry.

The Forces At Work In The Pop Culture Industry

 

 

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Technology Innovation

The proliferation of powerful mobile technology, such as tablets and smartphones, and the emergence of new content distribution services, such as Amazon Prime, Hulu and Netflix, have enabled fans to connect and engage with content anywhere, at any time, in larger “binge” quantities. More content and greater access have led to more fans spending more time per day consuming content. In addition, fans are able to develop a deeper affinity for content due to the increased prevalence of platforms and events where they can share their passion with other fans (such as through social media, blogs, YouTube, podcasts and online games). The accelerated pace of content discovery and sharing has created an environment where niche content can quickly become mainstream, resulting in more content becoming part of pop culture.

Evolution of Content

Content providers have increasingly focused on creating original scripted and franchise content that has broad global appeal and potential for sequels and brand extensions. During the 1990s, the top ten annual grossing movies included an average of 2.5 franchise films and from 2000 through 2015, the top ten annual grossing movies included an average of 6.6 franchise films. The growth of a healthy franchise ecosystem across content types has fostered fan loyalty and stimulated licensed product purchases. In addition, there has been a virtuous content-led cycle, which has driven an increase in the production of scripted high-budget, high-quality original TV shows, such as The Sopranos and Game of Thrones. The number of scripted original series more than doubled from 216 in 2010 to 455 in 2016, with newer entrants such as Amazon Prime, Hulu and Netflix spending or announcing the intention to

 

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spend substantial capital on new original content. For example, based on public filings, Netflix plans to invest approximately $6 billion in content creation in 2017.

Dedicated and Active Fan Base

We believe pop culture fans possess distinguishing characteristics that make them highly valuable consumers. Like sports fans, fans of other forms of pop culture identify strongly with their favored properties, and have a natural tendency to form social communities around them. For context, in 2016, retail sales of licensed entertainment and character products totaled $113 billion, compared to $25 billion for retail sales of licensed sports products. Furthermore, as it becomes increasingly easy to access a large quantity of quality content, fans seek more ways to expand and express connectivity to their favored characters or properties as they share their passion with others. As a result, consumers are participating in the story of these properties via social media platforms and conventions, such as Comic-Con, AnimeExpo and Star Wars Celebration, rather than being solely consumers of content. By being a part of the conversation regarding their favored content, fans reinforce their love for it, thereby creating a cycle of fandom.

Growing Cultural Relevance and Acceptance

As pop culture engagement has increased, we believe it has become more culturally acceptable to be openly passionate about all forms of pop culture, not just sports. Social media is driving the importance of pop culture as fans increasingly want to engage with the content and their social communities to show affinity for pop culture content. The top five U.S. media conventions, including Comic-Con International: San Diego and New York Comic Con, drew over a half million attendees in 2015, representing a sharp increase of over 40% from 2010. This growth was driven in part by an increase in female attendees, who accounted for 45% of all convention attendees in 2014. This represents a long-term cultural shift supporting the acceptability of fan affinity for pop culture content across multiple demographic categories of fans, and the growth beyond the traditional narrow, male-dominated demographic.

Our Strategic Differentiation

Leading Design and Creative Capabilities

Our in-house creative team layers our own whimsical, fun and distinct stylization onto content providers’ characters, creating unique products for which there is substantial consumer demand. Our creative team is passionate about pop culture. We enjoy a strong pipeline of talent for our creative team given our culture and the opportunity we provide to work with the most relevant pop culture content. We believe content providers trust us with their properties, and consumers passionately engage with our products and brands because of our creativity. In addition, we reinvigorate classic evergreen or back catalog content by infusing a fresh, unique aesthetic and design into characters that enjoy enduring passion and nostalgia from fans. As a result of our creative capabilities and broad portfolio of licenses, we create a substantial number of new products each year, including approximately 2,300 new products in 2016.

Diversity of Products and Accessible Price Points Create Broad Appeal

We create products to appeal to a broad array of fans across consumer demographic groups. We do not limit ourselves by targeting discrete demographics such as the stereotypical collector or the child seeking the latest (and often short-lived) toy craze. We estimate based on market and internal data that occasional buyers, which we define as those consumers who are mainstream movie and TV fans, but do not self-identify as enthusiasts, and enthusiasts, who are more engaged in pop culture

 

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than occasional buyers but who do not self-identify as collectors, each make up approximately one-third of our customers. Our products’ price points are generally under $10, which allows our diverse consumer base to express their fandom frequently and impulsively. We have broadened our products beyond our historical focus on figures (down to approximately 82% of 2016 net sales from 91% of 2015 net sales), having successfully launched new and growing categories such as plush (approximately 6% of 2016 net sales) and accessories (approximately 5% of 2016 net sales). We believe we have one of the largest and most engaged fan bases in our industry, driven by their passion and love of our unique products and the properties we represent.

Trusted Steward of the Most Important Pop Culture Content

We strive to license every pop culture property that we believe is relevant to our consumers. Over the last decade, we have built strong relationships with content providers and currently have a catalog of content licenses covering over 1,000 properties that we believe is one of the industry’s largest. We believe there is a trend of content providers consolidating their relationships to do more business with fewer licensees. As a trusted steward with a strong retail distribution network, we believe we have benefited from this trend. We often work collaboratively with content providers in advance of new content releases to create unique, stylized products to maximize the value of their properties. In some cases, the input we have provided has influenced the content provider’s creative choices for its original content. We have licenses for all of the 15 highest grossing movie franchises in history. We believe we are well positioned to continue to obtain licenses for new important movie franchises and other properties. Further, we have historically been able to renew productive licenses on commercially reasonable terms, which positions us to benefit from the ongoing desire of consumers to engage with and show affinity for their favorite pop culture content.

Deep, Mutually Beneficial Relationships with a Broad Network of Retail Customers

We partner with a diverse group of retail customers through which we sell our products. Many of our retail customers view us as experts in pop culture and in some cases we help manage their growing pop culture category within their stores and can provide a curated experience by catering to their particular customer bases. We believe this enables us to enhance the productivity of the pop culture category for our retail customers, resulting in increased sales and expanded shelf space for our products—a major driver of our growth historically. Additionally, we believe our pop culture expertise and omnichannel sales model position us well to capture the industry shift from traditional brick and mortar to channel-agnostic content consumerism. In addition, we often release exclusive new products with a specific retail customer, driving significant traffic and sales for them.

Nimble Speed to Market Reflects “Fast Fashion” Product Development Process

Speed to market has become increasingly important as technological innovation has accelerated the pace of content discovery and sharing and the speed at which niche content can become mainstream. Our flexible and low-fixed cost production model enables us to go from product design of a figure to the store shelf between 110 and 200 days and can have it on the shelf in as few as 70 days, with a minimal upfront investment for most figures of $5,000 to $7,500 in tooling, molds and internal design costs. Because of the strength of our in-house creative team, we are able to move from product design to pre-selling a new product in as few as 24 hours. This ability, coupled with the valuable data insights we have developed over the past decade, and the increasing use of repeated franchise properties by content providers, reduces potential product risk to us while better positioning us to benefit from trends in content creation and consumption. As an example of our “fast fashion” product development process, we announced and were able to pre-sell a dancing Baby Groot figure, which was a surprise character in Marvel’s 2014 Guardians of the Galaxy movie release, within a week of the movie release.

 

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Dynamic Business Model Drives Revenue Visibility and Growth

Our business is diversified across content providers and properties, product categories, and sales channels. As a result, we can dynamically manage our business to capitalize on pop culture trends, which has allowed us to deliver significant growth while lessening our dependence on individual content releases. Our content provider relationships are highly diversified. We generated only approximately 8% and 15% of net sales from our top property for the six months ended June 30, 2017 and the year ended December 31, 2016, respectively, and the portion of our net sales for the six months ended June 30, 2017 and the year ended December 31, 2016 attributable to our top five properties was 27% and 36%, respectively. Our products are balanced across our licensed property categories. In 2016, we generated approximately 43% of net sales from classic evergreen properties, approximately 24% from movie release properties, approximately 20% from current video game properties and approximately 12% from current TV properties. We have visibility into the new release schedule of our content providers and our expansive license portfolio allows us to dynamically manage new product creation. This allows us to adjust the mix of products based on classic evergreen properties and new releases, depending on the media release cycle. In addition, we sell our products worldwide through a diverse group of sales channels, including specialty retailers, distributors, mass-market retailers, e-commerce sites and direct-to-consumer.

Visionary Management Team and Employees with Genuine Passion for Pop Culture

Our highly experienced management team is led by Brian Mariotti, an industry pioneer. A long-time pop culture fan, Brian recognized early on the impact that trends in media and entertainment would have on the pop culture industry and the value of having a diverse portfolio of licenses. Passion for pop culture pervades our company and our openness to new ideas from anywhere in the organization has resulted in some of our most innovative and differentiated products.

How We Plan To Grow

We are pursuing the following strategies that we believe will drive substantial future growth.

Increase Sales with Existing Retail Customers

We intend to continue to increase our sales by expanding our shelf space and deepening our relationships with our retail customers. Our products have driven traffic to our retail customers’ previously less productive square footage, which has resulted in increased shelf space for our products. In addition to designing unique, stylized products that resonate with pop culture fans and drive traffic, we intend to increase the number of retail customers for whom we curate pop culture selections. We believe doing so deepens our relationships with our retail customers and encourages them to allocate more shelf space to our products and pop culture products generally and, in some cases, create pop culture departments where none existed before, which we believe will drive additional brand awareness and sales growth. We are also in the process of creating a self-service online portal for our retail customers to reduce ordering time and increase the efficiency of our ordering process, which we believe will increase our sales with our existing retail customers.

Add New Retail Customers and Expand Into New Channels

We regularly evaluate and add new retail customers as we believe consumers demand Funko products regardless of the retail channel through which they purchase them. While we believe we have opportunities to add new specialty and mass-market retailers, we also plan to selectively target new or underdeveloped sales channels, such as dollar, drug, grocery and convenience stores. By adding new retail customers, we will increase the awareness and availability of our products to consumers, which we believe will increase sales. We also intend to increase our direct-to-consumer efforts, which represented approximately 6% of 2016 net sales.

 

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Broaden Our Product Offerings

In addition to designing products to address new content that licensors continually produce, we plan to add new product categories, lines and brands to leverage our existing sales channels to continue to drive sales. For example, we are expanding our blind box offerings, which have historically included figures, to plush products. We also continually evaluate product innovations and potential acquisition targets to complement our existing product categories, lines and brands. In June 2017, we completed the acquisition of Loungefly, LLC, a designer of a variety of licensed pop culture fashion handbags, small leather goods and accessories, to expand and diversify our product offerings in our accessories category. Adding new product categories, lines and brands will enable us to leverage our existing retail distribution network to quickly increase sales while offering a more fulsome pop culture product offering to our retail customers and consumers. Adding new product categories, lines and brands will enable us to leverage our existing retail distribution network to quickly increase sales while offering a more fulsome pop culture product offering to our retail customers and consumers.

Expand Internationally

We believe that the forces at work first observed in the U.S. pop culture industry are global. We believe we are currently underpenetrated internationally, as approximately 28.6% and 18.8% of net sales for the six months ended June 30, 2017 and the year ended December 31, 2016, respectively, were generated outside of the United States, and we believe that international sales represent a significant growth opportunity. In contrast to our international sales, approximately 75% of global box office receipts in 2016 were generated outside of the United States, suggesting significant potential for international growth. We are investing in the growth of our international business both organically and through third party distributors. In January 2017, we acquired certain assets of Underground Toys Limited and now sell directly to certain of our customers in Europe, the Middle East and Africa through our newly formed subsidiary, Funko UK, Ltd. In the future we may pursue similar acquisitions, or expand our direct sales force or distributor relationships to further penetrate Asia Pacific, Latin America or other regions.

Leverage the Funko Brand Across Multiple Channels

We believe there is a significant opportunity to leverage our distinctive style and designs across numerous underserved channels such as digital content, as well as potentially movies and television. For example, we are in the process of creating an online portal for Funko that will serve as an online destination for our consumers. This online community will allow consumers to create personal avatars, purchase digital products and interact with other consumers. We believe this opportunity will drive brand awareness with new audience segments, deepen consumer engagement to drive customer lifetime value, strengthen our direct connection with our consumers and grow our direct-to-consumer business, as well as support our retail customers.

Product Lines and Licenses

We sell a broad array of licensed pop culture consumer products featuring characters from an extensive range of media and entertainment content, including movies, TV shows, video games, music and sports. Our products combine our proprietary brands and distinct designs and aesthetic sensibilities into properties we license from content providers. We seek to license content that will allow us to capitalize on the popularity of current movies, TV shows, video games, music and other content releases, as well as classic evergreen properties, which are not tied to a current release, and which are less subject to pop culture trends.

 

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Our Products

Our current products principally fall within the following product categories.

Figures .     Our figures category includes figures that celebrate pop culture icons in the form of stylized vinyl, bobble heads, blind-packed miniatures and action figures. These figures combine the pop culture properties we license with our distinctive designs to create pop culture figures that appeal to a broad range of consumers at an affordable price point, often under one of our proprietary brands, such as Pop!, Mystery Minis, Dorbz, Pint Size Heroes and Rock Candy.

Plush .      Our plush products are soft-sculpt figures that blend licensed content with our distinctive designs to create an array of product lines, including Galactic, Hero and Supercute Plushies, intended for consumers of all ages.

Accessories .      Our accessories products mix pop culture fandom with functionality, and feature everything from pens and pins to buttons and keychains, all based on pop culture icons.

Other .     We also produce products in certain other categories, primarily apparel (including t-shirts and hats) and homewares (including drinkware, party lights and other home accessories).

We recently completed the acquisition of Loungefly, LLC and now also offer different types of stylized bags and wallets.

 

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The table below sets forth certain information on our principal product categories.

 

Product Category

  Selected Products   Principal Brands    Average Selling Price (1)
Figures   LOGO

 

 

 

LOGO

   $9.47
Plush   LOGO

 

 

 

LOGO

   $10.24
Accessories   LOGO

 

 

 

LOGO

   $5.16
Other   LOGO

 

 

 

LOGO

   $8.52
Bags and Wallets   LOGO

 

  LOGO    N/A
(1)   Average selling prices represent the average of our suggested retail prices for products sold in that category during the year ended December 31, 2016.

Our Brands and Designs

Under the Funko brand, we have developed multiple proprietary brands under which we market most of our products. We also continuously develop new product designs and lines, which may develop into proprietary brands in the future. Our principal proprietary brands include: Pop!, Mystery Minis, Dorbz, Pint Size Heroes, Rock Candy, Galactic or Hero Plushies, SuperCute, MyMoji and Loungefly.

Pop! .    Introduced in 2010, Pop! is our most well-recognized brand. The Pop! stylized design incorporates an equal head to body ratio with a rounded square head that typically consists of no mouth and a very simple nose. Pop! figures typically stand about four inches tall. The Pop! design has also been applied across all of our other product categories, including plush, accessories, apparel and homewares. As a brand, Pop! represented 64% and 75% of our 2016 and 2015 net sales, respectively.

 

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Mystery Minis .    Introduced in 2013, Mystery Minis are sets of 12 different figures per property sold individually in a blind box so that the consumer does not know which figure from the set they have purchased. The figures are all highly stylized, but the style can vary based on the licensor. The figures themselves are typically two and a half inches tall and have varying rarity within the set to create a “treasure hunt” appeal. As a brand, Mystery Minis represented 9% and 11% of our 2016 and 2015 net sales, respectively.

Dorbz .    Introduced in 2015, Dorbz are adorable stylized figures with slightly sculpted round heads on uniform pad printed bodies. The figures stand about three inches tall and are packaged in a double window box. The designs incorporate an equal head to body ratio with smiling features.

Pint Size Heroes .    Introduced in 2015, Pint Size Heroes are slightly stylized figures with sculpted heads and uniform bodies. They stand one and a half inches tall and have an equal head to body ratio. Released in sets of 24 by property, they are packaged in a blind bag so that the consumer does not know which figure they are purchasing.

Rock Candy .    Introduced in 2015, Rock Candy figures are primarily based on female characters holding a strong pose. The figures stand five inches tall, are stylized and have slightly larger heads and eyes, with a head to body ratio of one to two.

Galactic or Hero Plushies .    Introduced in 2016, Galactic or Hero Plushies are plush figures that are stylized in a rag doll style with floppy legs and arms. They have a slight weight in the bottom to help with sitting and average six inches in length. They are stylized in a simplified manner that has subtle facial features and represents certain properties such as Star Wars or DC Comics.

SuperCute .    Introduced in 2016, SuperCute is a nostalgia storybook stylized design that has a head to body ratio of two to three. The figures have large round eyes, no nose and a small mouth. The bodies are very simple and have their arms at their sides and their legs pushed together. The SuperCute brand and design have been applied to various Mystery Minis sets and certain plush figures.

MyMoji .    Introduced in 2016, MyMoji is a stylized interpretation of the classic “emoji”. The designs are inspired by various licensed characters and have more personality and details that capture the essence of the character or property. The MyMoji brand and designs have been applied to figures that are sold in a blind bag, as well as plush figures.

Loungefly .    Acquired in June 2017, Loungefly products are fashion focused stylized handbags, backpacks, small leather goods and accessories. Loungefly products currently are based on a limited set of licenses, however, we anticipate expanding the licenses and content used to create our Loungefly products in the future.

In addition, we also develop product lines that we market under the broader Funko brand, rather than under any of our proprietary brands. We typically do so when we believe our speed to market or other competitive advantages uniquely position us to take advantage of certain opportunities. While these products may not initially be associated with one of our proprietary brands, they still reflect our whimsical and creative style, and may develop into a distinct brand over time. For example, in 2015, we entered into a master license in connection with the video game property Five Nights at Freddy’s, under which we created a broad array of products, including figures, plush and keychains. Sales of products made under our Five Nights at Freddy’s license accounted for 8% and 15% of our net sales for the six months ended June 30, 2017 and the year ended December 31, 2016, respectively. A sequel to Five Nights at Freddy’s was released in the fall of 2016 and we have continued to see strong performance from this property. Similar to Five Nights at Freddy’s, in October 2016, we amended our license agreement with the Cartoon Network to add the TV property Rick & Morty and began selling products based on this property at the end of 2016.

 

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Our Licenses

Licensors .      We have strong licensing relationships with many established content providers, such as Disney, HBO, LucasFilm, Marvel, the National Football League and Warner Brothers. We also seek to establish licensing relationships with newer content providers in order to capitalize on new and emerging trends in pop culture. For example, in recent years, we have established relationships and entered into licensing arrangements with each of Dr. Seuss, Netflix and Riot Games related to the Dr. Seuss, Stranger Things and League of Legends properties, respectively. We believe we provide value to content providers by maximizing the lifetime value of their content by extending its relevance to consumers through ongoing fan engagement. During the first half of 2017, we had active license agreements with approximately 112 different licensors covering over 1,000 properties.

Licensed Properties .      We strive to license every pop culture property that we believe is relevant to consumers. What we consider to be a property will vary based on the terms of the underlying license agreement. In general, we consider each content title to constitute a single property. In some instances, however, a property may consist of an entire franchise or even a single character, particularly in our classic evergreen category. We divide our licensed properties into four main categories: classic evergreen, movie release, current TV and current video game. We also license certain properties that fall outside of these four main categories.

 

    Classic Evergreen .      Properties in the classic evergreen category are based on movies, TV shows, video games, music, sports or other entertainment content that is not tied to a new or current release at the time we release the product. As a result, products that we design and sell based on these properties generally do not have a defined duration of market demand. Examples of our classic evergreen properties currently include DC Comics, Dr. Seuss, Friends, Marvel and Seinfeld.

 

    Movie Release .      Properties in the movie release category are tied to new movie releases and are intended to capitalize on the excitement of fans surrounding these releases. Products that we design and sell based on these properties are expected to have a limited duration of market demand, depending on the popularity of the movie release. Examples of our movie release properties currently include Beauty and the Beast, Captain America: Civil War, Guardians of the Galaxy 2, Star Wars Episode VII and Rogue One.

 

    Current TV .     Properties in the current TV category are tied to TV shows that are currently airing new content. These properties are expected to have a market demand depending on the popularity and longevity of the TV show, which is generally expected to be between three and seven years. Examples of our current TV properties currently include Dr. Who, Game of Thrones, Stranger Things and The Walking Dead.

 

    Current Video Game .      Properties in the current video game category are tied to new video game releases that are intended to capitalize on the excitement of fans surrounding these releases. Products that we design and sell based on these properties are expected to have a market demand depending on the popularity and longevity of the video game, which is generally expected to be three to seven years. Examples of our current video game properties currently include Call of Duty, Five Nights at Freddy’s and League of Legends.

 

    Other .      We also occasionally license properties that do not fit within the four categories described above, including those associated with current events and limited-duration pop culture phenomena, which we are able to capitalize on due to our speed to market and low cost of production. For example, in connection with the 2016 presidential election, we produced a line of Pop! branded and other figures featuring stylized versions of selected presidential candidates. In addition, in connection with Comic-Con International: San Diego in 2015 and 2016, we created a set of Pop! branded figures featuring late-night TV host Conan O’Brien.

 

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We expect these categories and the properties they encompass to evolve over time as current content becomes classic evergreen and as new forms of pop culture content emerge. In addition, while the percentage of net sales attributable to our classic evergreen properties has been between approximately 43% and 49% over the past three years, it may fluctuate in any given year based on the number and popularity of new content releases.

The chart below shows the allocation of net sales across our licensed property categories for the year ended December 31, 2016.

 

 

LOGO

License Agreements .      Our license agreements permit us to use the intellectual property of our licensors in connection with the products we design and sell. These license agreements typically provide that our licensors own intellectual property rights in the products we design and sell under the license, and as a result, upon termination of the license, we no longer have the right to sell these products. A number of these license agreements relate to properties that are significant to our business and operations. Our license agreements typically have terms of between two and three years and are not automatically renewable. However, we believe we have strong relationships with our licensors, and have historically been able to renew productive licenses on commercially reasonable terms.

Our license agreements require us to make royalty payments to the licensor based on our sales of the licensed product and, in some cases, require us to incur other charges. For the six months ended June 30, 2017 and 2016, our weighted average royalty rate across all of our license agreements was 14.4% and 14.9%, respectively, and for the years ended December 31, 2016 and 2015, the weighted average royalty rate across all of our license agreements was 15.2% and 14.9%, respectively. Our royalty expense for any given year will vary depending on the mix of products sold during that year. For the six months ended June 30, 2017 and 2016, we incurred royalty expenses of $29.3 million and $26.2 million, respectively, and for the years ended December 31, 2016 and 2015, we incurred royalty expenses of $64.7 million and $40.8 million, respectively.

Our licenses are generally not exclusive. In addition, the rights that licensors grant to us are typically limited to specific properties, product categories, territories and, in some cases, sales channels. Since late 2015, we have also entered into several master licenses in connection with certain content. These licenses grant us rights to a broader set of products and product categories. Sales of products made under our first master toy license, in connection with the video game property

 

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Five Nights at Freddy’s, accounted for approximately 15% of our 2016 net sales. Additionally, in October 2016, we amended our license agreement with the Cartoon Network to add the TV property Rick & Morty. In the future, we may continue to selectively acquire additional master toy licenses on a case by case basis.

In addition, our license agreements usually require us to obtain the licensor’s approval of products we develop under the license prior to making any sales. They also typically provide for a minimum guarantee that covers all licensed properties under that license agreement, which is generally required to be paid in advance, and the amount of which is negotiated based on a variety of factors, including past and expected sales and the licensor’s expected line-up of new releases. Historically, we have had a strong track record for meeting minimum guarantees under our license agreements. For the six months ended June 30, 2017 and 2016 and the years ended December 31, 2016 and 2015, we recorded reserves of $0.2 million, $0.2 million, $0.3 million and $0.1 million, respectively, related to prepaid royalties we estimated would not be met through sales.

Product Design and Development

We believe our creative product designs and nimble speed to market are key reasons why content providers trust us with their properties and consumers passionately engage with our brands and products. We leverage our creative, art and sculpting teams to design and develop products in-house from inception to production. Our creative team layers our whimsical, fun and unique style onto the content we license to create product designs that resonate with consumers. Our creative team is passionate about pop culture, and we have a strong pipeline of talent given our culture and the opportunity we provide to work with the most relevant pop culture content. Our designers often work collaboratively with content providers in advance of new content releases to create unique, stylized products to maximize the value of their properties and, in some cases, the input we have provided has influenced the content provider’s creative choices for their original content.

Our product development team oversees all aspects of new product development in order to ensure a timely product design and development process, including submitting the initial design to the content provider for approval, developing the product prototype, receiving final content provider approval and coordinating manufacturing with our third-party manufacturers. We can have a new figure on the store shelf in as few as 70 days and typically between 110 and 200 days. One of the primary factors in our speed to market is our use of digital sculpting, which has increased our speed to market since we began using it in 2013. Our ability to bring new products to market quickly reduces our potential product risk and allows us to capitalize on new pop culture trends as they emerge.

We believe the overall design and development cost of our products is low. On average, the cost to design and develop a new figure is approximately $5,000 to $7,500, including tooling, molds and internal design costs. For the years ended December 31, 2016 and 2015, we released approximately 2,300 and 1,600 new products, respectively, across all of our product categories.

Manufacturing and Materials

Currently, our products are primarily produced by third-party manufacturers in China and Vietnam, which we choose on the basis of performance, capacity, capability and price. We also manufacture or assemble certain apparel and other products in the United States and Mexico. The use of third-party manufacturers enables us to avoid incurring fixed manufacturing costs, while maximizing flexibility, capacity and capability. Though our manufacturing base has diversified over time as we have grown our sales and expanded our product offerings, we have historically concentrated production with a small number of manufacturers and factories as part of a continuing effort to monitor quality, reduce manufacturing costs and ensure speed to market. In the case of most of the factories in which our

 

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products are manufactured, we believe our products represent a significant percentage of each factory’s total capacity, which we believe provides us greater flexibility in supply chain management. We do not have long-term contracts with our manufacturers. We believe that alternative sources of supply are available to us although we cannot be assured that we can obtain adequate supplies of manufactured products on a timely basis or at all.

We base our production schedules for products on our internal forecasts, taking into account historical trends of similar products and properties, current market information and communications with customers. The accuracy of our forecasts is affected by consumer acceptance of our products, which is based on the strength of the underlying licensed property, the strength of competing products, the marketing strategies of retailers, changes in buying patterns of both our retail customers and our consumers, and overall economic conditions. Unexpected changes in these factors could result in a lack of product availability or excess inventory of a particular product.

Although we do not conduct the day-to-day manufacturing of our products, we are responsible for designing the product prototype and production tools and molds for our products, and we seek to ensure quality control by actively reviewing the production process and testing the products produced by our manufacturers. We recently implemented third-party quality control inspectors who rotate among our manufacturers’ factories to engineer the quality control process prior to production, provide quality assurance oversight during production and sample finished goods to validate the quality control process.

In addition to quality control testing, safety testing of our products is done by independent third-party testing laboratories engaged by us. Safety testing is designed to meet or exceed regulations imposed by federal and state governments, as well as applicable international governmental authorities, our retail partners and content providers. In addition, independent laboratories engaged by some of our larger customers and content providers test certain of our products as well as the factories in which they are produced.

While we purchase finished products from our manufacturers, the cost of our products is impacted by the cost of labor, as well as the cost of the principal raw materials used in the production and sale of our products, including vinyl, fabric, ceramics and plastics. All of these materials are readily available, but may be subject to significant fluctuations in price. Although we do not manufacture our products, we own most of the tools and molds used in the manufacturing process, and these are transferable among manufacturers if we choose to employ alternative manufacturers.

Sales

We sell our products to a diverse network of customers throughout the world. Domestically, we sell our products to specialty retailers, mass-market retailers and e-commerce sites. Our key retail partners in the United States include Amazon, Barnes & Noble, Entertainment Earth, GameStop, Hot Topic, Target and Walmart. We also plan to target new or underdeveloped sales channels, including dollar, drug, grocery and convenience stores. Internationally, we sell our products directly to similar retailers, primarily in Europe, through our subsidiary Funko UK, Ltd. Our key international retail customers include Smyths Toys and Tesco.

In addition to retailers, we also sell our products to distributors for sale to small retailers in the United States and in certain countries internationally, typically where we do not currently have a direct presence. We also sell certain of our products directly to consumers through our e-commerce business and, to a lesser extent, at specialty licensing and comic book shows, conventions and exhibitions in cities throughout the United States, including at Comic-Con events. In 2015, we launched our subscription box service, which utilizes a subscription-based billing program to deliver an array of blind-packed pop culture products from across our product categories shipped directly to our consumers.

 

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Our direct-to-consumer sales accounted for approximately 6% of our 2016 net sales. Though our direct-to-consumer efforts have historically represented a small portion of our net sales, we intend to increase these efforts in the future.

The chart below sets forth certain information regarding our sales channels for the year ended December 31, 2016.

 

LOGO

We believe we have a diverse customer base, with our top ten customers representing approximately 63%, 62% and 60% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively. Our largest customer, GameStop, represented approximately 12%, 12% and 11% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively. Additionally, Underground Toys Limited represented approximately 8%, 18% and 10% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively, and Hot Topic represented approximately 9%, 8% and 11% of our 2016, Successor 2015 Period and Predecessor 2015 Period net sales, respectively. Other than GameStop, Underground Toys Limited and Hot Topic, no single customer represented more than 10% of our net sales during the same periods.

We maintain a full-time sales staff, many of whom make on-site visits to our customers for the purpose of showing products and soliciting orders. Many of our retail customers view us as experts in pop culture and, in some cases, we help manage their growing pop culture category within their stores, providing a curated experience by catering to their particular customer bases. For example, we can curate products based on Dr. Seuss and Harry Potter books for Barnes and Noble, and gaming-based products, such as Fallout and League of Legends, for GameStop. We believe this creates a mutually beneficial relationship between us and our retail customers by providing us with an opportunity to enhance the productivity of the pop culture category within their stores, which may also result in expanded shelf space for our products. In addition to our full-time sales staff, we also retain a number of independent sales representatives to sell and promote our products both domestically and internationally.

We sell our products to our customers with payment terms typically varying from 30 to 90 days. As discussed above, we contract the manufacture of most of our products to third-party unaffiliated manufacturers primarily located in China, Vietnam and Mexico and ship those products to our warehouse facilities in the United States and the United Kingdom. While most of our sales originate in the United States and the United Kingdom from inventory we hold in our warehouses, certain of our

 

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customers may from time to time take title to our products upon shipment from the factory or at the port.

We establish reserves for sales allowances, including promotional and other allowances, at the time of sale. The reserves are determined as a percentage of net sales based upon either historical experience or upon estimates or programs agreed upon by our customers and us. As of June 30, 2017, we had reserves for sales allowances of $2.3 million.

Marketing

The proliferation of mobile technology and social media has enabled consumers to connect and engage with content, transforming the way in which they interact with their favorite movies, TV shows, video games, music, sports and each other. We leverage these platforms, including Facebook, Instagram and Twitter, to deepen the connections between our retail customers, consumers and our products by actively posting promotional videos and other promotional content. In certain circumstances, we partner with content providers to create promotional videos that are posted both on their and our social media accounts. We also engage in digital advertising primarily to support our e-commerce business. We actively maintain our website www.funko.com, which includes a blog page, where we communicate news and other product updates directly to consumers, and our Funko Funklub, which provides special product offerings. Moreover, we also engage with our consumers through online fan pages, including Funko Fanatics, which are run by our fans. We intend to continue to expand our reach through different social media outlets, our websites and internet-based advertising. We believe this will enable us to broaden the reach of our brand and the products we produce, as well as enhance our engagement with pop culture fans and consumers.

Additionally, we also interact directly with consumers at specialty licensing and comic book shows, conventions and exhibitions, including Comic-Con events located in several cities throughout the United States, most notably Comic-Con International: San Diego, and New York Comic Con, each of which we believe had event attendance of over 100,000 in 2016. We occasionally advertise through consumer magazines and other publications and carry on cooperative advertising programs with our retail customers, which include the use of print ads and in-store displays.

In August 2017, we opened a flagship retail store location at our new headquarters in Everett, Washington. We opened this location to showcase our products and brands, to demonstrate retail merchandising for our customers, as a benefit to our employees, and to serve as a destination for our fans. We currently do not intend to open additional retail locations.

Competition

We are a worldwide leader in the design, manufacture and marketing of licensed pop culture products, but our business is highly competitive. We compete with toy companies in many of our product categories, some of which have substantially more resources than us, stronger name recognition, longer operating histories and benefit from greater economies of scale. We also increasingly compete with large toy companies for shelf space at leading mass market and other retailers. We also compete with numerous smaller domestic and foreign collectible product designers and manufacturers in each of our product categories. Competition is based primarily on the quality of the design and perceived value of our products, our price points, our license portfolio and our ability to bring new products to market quickly.

We produce most of our products under trademarks and copyrights that we own, utilizing the intellectual property of our licensors. Certain of our licensors have reserved the rights to manufacture, distribute and sell identical or similar products. Some of these products could directly compete with our

 

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products and could be sold to our customers or directly to consumers at lower prices than those at which our products are sold.

Although we have one of the largest portfolios of licensed content in the pop culture industry, with strong relationships with many of our licensors, we must vigorously compete to obtain these licenses from leading content providers on commercially reasonable terms, and to expand our license rights into additional licensed product categories. This competition is based primarily on the creativity of our product designs, our ability to bring new products to market quickly, our ability to increase fan engagement, the breadth of our sales channels and the quality of our products. See “Risk Factors—Risks Related to Our Business—Our industry is highly competitive and the barriers to entry are low. If we are unable to compete effectively with existing or new competitors, our sales, market share and profitability could decline.”

Intellectual Property

We believe that our trademarks, copyrights and other intellectual property rights have significant value and are important to the marketing of our brand and the favorable perception of our products. As of June 30, 2017, we owned approximately 30 registered U.S. trademarks, 94 registered international trademarks, 15 pending U.S. trademark applications and 34 pending international trademark applications. Most of our products are produced and sold under trademarks owned by or licensed to us. We register many of our trademarks related to our brands, and seek protection under the trademark and copyright laws of the United States and other countries where our products are produced or sold. These intellectual property rights can be significant assets. Accordingly, while we believe we are sufficiently protected, the failure to obtain or the loss of some of these rights could have an adverse effect on our business, financial condition and results of operations. See “Risk Factors—Risks Related to Our Business—If we are unable to obtain, maintain and protect our intellectual property rights, in particular trademarks and copyrights, or if our licensors are unable to maintain and protect their intellectual property rights that we use in connection with our products, our ability to compete could be negatively impacted.”

Most of our products are produced under short term, non-exclusive license agreements which typically provide that our licensors own intellectual property rights in the products we design and sell under the license, and as a result, upon termination of the license, we no longer have the right to sell these products. In addition, our license agreements typically provide for a minimum guarantee to be paid in advance, and royalty payments based on our sales of the licensed products, as well as various other non-monetary obligations. See “Risk Factors—Risks Related to Our Business—Our business is dependent upon our license agreements, which involve certain risks.”

Government Regulation

Our products sold in the United States are subject to the provisions of the Consumer Product Safety Act, or the CPSA, the Federal Hazardous Substances Act, or the FHSA, the Consumer Product Safety Improvement Act of 2008, or the CPSIA and the Flammable Fabrics Act, or the FFA, and the regulations promulgated pursuant to such statutes. These statutes and the related regulations ban from the market any consumer products that fail to comply with applicable product safety laws, regulations, and standards. The Consumer Product Safety Commission may require the recall, repurchase, replacement, or repair of any such banned products or products that otherwise create a substantial risk of injury and may seek penalties for regulatory noncompliance under certain circumstances. Similar laws exist in some U.S. states and our products sold worldwide are subject to the provisions of similar laws and regulations in many jurisdictions, including Canada, Australia, Europe and Asia.

We maintain a quality control program to help ensure compliance with applicable product safety requirements. We use independent third-party laboratories that employ testing and other procedures

 

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intended to maintain compliance with the CPSA, the FHSA, the CPSIA, the FFA, other applicable domestic and international product standards, as well as our own standards and those of some of our larger retail customers and licensors. Nonetheless, there can be no assurance that our products are or will be hazard free, and we may in the future experience issues in products that result in recalls, withdrawals, or replacements of products. A product recall could have a material adverse effect on our results of operations and financial condition, depending on the product affected by the recall and the extent of the recall efforts required. A product recall could also negatively affect our reputation and the sales of other Funko products. See “Risk Factors—Risks Related to Our Business— We could be subject to future product liability suits or product recalls which could have a significant adverse effect on our financial condition and results of operations.”

We are subject to various other federal, state, local and international laws and regulations applicable to our business, including export controls, and have established processes for compliance with these laws and regulations.

Employees

As of June 30, 2017, we employed 465 full-time employees. We also employed seven part-time employees. We employed 339 people in the United States and 126 people in the United Kingdom. None of our employees are represented by a labor union or are party to a collective bargaining agreement, and we have had no labor-related work stoppages. We believe that we have good relationships with our employees.

Facilities

Our leased properties primarily consist of office space, warehouses and distribution facilities. The table below sets forth certain information regarding these properties, all of which are leased.

 

Property

 

Location

  Approximate Square
Footage
   

Lease Expiration Date

Corporate Headquarters

  Everett, Washington     84,000     January 31, 2027

Offices, Main Warehouse and Distribution Facility

  Everett, Washington     201,000     January 31, 2026

Warehouse and Distribution Facility

  Everett, Washington     119,000     July 31, 2021

Warehouse and Distribution Facility

  Everett, Washington     83,000     July 31, 2021

Offices, Apparel Design Team

  San Diego, California     7,000     December 1, 2018

Sales Offices

  Bentonville, Arkansas     1,000     November 30, 2019

Warehouse

  Maldon, Essex, United Kingdom     52,000     March 31, 2019

Warehouse and Administrative Offices

  Maldon, Essex, United Kingdom     38,000     July 12, 2021

Sales Offices

  London, United Kingdom     1,100     February 1, 2022

Warehouse and Administrative Offices

  Chatsworth, California     46,000     June 28, 2020

Offices, Licensing and Apparel Sales

  Burbank, California     7,161     February 28, 2023

For leases that are scheduled to expire during the next 12 months, we may negotiate new lease agreements, renew existing lease agreements or use alternate facilities. We believe that our facilities are adequate for our needs and believe that we should be able to renew any of the above leases or secure similar property without an adverse impact on our operations.

 

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Legal Proceedings

We are, from time to time, party to various claims and legal proceedings arising out of our ordinary course of business, but we do not believe that any of these claims or proceedings will have a material effect on our business, financial condition or results of operations.

 

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MANAGEMENT

The following table provides information regarding our executive officers and members of our board of directors (ages as of October 6, 2017):

 

Name

   Age     

Position(s)

Brian Mariotti

     49      Chief Executive Officer, Director

Russell Nickel

     43      Chief Financial Officer

Andrew Perlmutter

     40      President

Tracy Daw

     52      Senior Vice President, General Counsel and Secretary

Ken Brotman

     52      Chairman of the Board of Directors

Gino Dellomo

     38      Director

Charles Denson

     61      Director

Diane Irvine

     58      Director

Adam Kriger

     51      Director

Richard McNally

     62      Director

Executive Officers

Brian Mariotti has served as Funko, Inc.’s Chief Executive Officer and as a member of Funko, Inc.’s board of directors since its formation in April 2017, as the Chief Executive Officer of FAH, LLC and as a member of FAH, LLC’s board of directors since October 2015, and as Chief Executive Officer of FHL and as a member of FHL’s board of directors since May 2013. Mr. Mariotti has also served as Chief Executive Officer of Funko, LLC since he acquired the business with a small group of investors in 2005. We believe Mr. Mariotti’s knowledge of the pop culture industry and many years of experience as our Chief Executive Officer make him well-qualified to serve as a member of our board of directors.

Russell Nickel has served as Funko, Inc.’s Chief Financial Officer since its formation in April 2017, and as the Chief Financial Officer and Secretary of FAH, LLC since October 2013. Mr. Nickel was Vice President of Finance at ClipCard from May 2013 until October 2013, and the Institute for Corporate Productivity (i4cp) from 2011 until 2013, where he was responsible for all finance, accounting, and legal matters. Before joining i4cp, Mr. Nickel held various senior finance and accounting positions in other companies and also worked in public accounting, including as an Audit Manager at KPMG, LLP. Mr. Nickel received a B.A. in Accounting from the University of Washington.

Andrew Perlmutter has served as the President of Funko, Inc. and FAH, LLC since October 2017. Mr. Perlmutter was the Senior Vice President of Sales of FAH, LLC from June 2013 until October 2017. Prior to that, he was a co-founder of Bottle Rocket Collective, a board and travel games company, where he oversaw product manufacturing and sales from December 2012 until December 2013. Prior to that, he was a National Account Manager at The Wilko Group from August 2001 until December 2012, where he managed sales to a variety of major mass-market, specialty and online retailers. Mr. Perlmutter received a B.A. in Interpersonal Communications from Southern Illinois University.

Tracy Daw has served as Funko, Inc.’s Senior Vice President, General Counsel and Secretary since its formation in April 2017, and as the Senior Vice President and General Counsel of FAH, LLC since July 2016. Mr. Daw served as the General Counsel of INRIX, Inc. from April 2012 until July 2016, where he was responsible for global legal affairs, with emphasis on corporate and intellectual property matters. He also previously served in various roles at RealNetworks, Inc. from February 2000 until April 2012, including as Senior Vice President, Chief Legal Officer and Corporate Secretary, where he managed the company’s global legal affairs and corporate development efforts. From 1990 to 2000, Mr. Daw was a member of the law firm of Sidley Austin LLP, where he was a partner. Mr. Daw received a J.D. from the University of Michigan Law School and a B.S. in Industrial and Labor Relations from Cornell University.

 

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Directors

Ken Brotman has served on the board of directors of Funko, Inc. since its formation in April 2017, and on the board of directors of FAH, LLC since October 2015. Mr. Brotman is a Founder and Managing Partner at ACON Investments, which he co-founded in 1996. Before that, Mr. Brotman was a partner at Veritas Capital, Inc. from 1993 until 1996, and, between 1987 and 1993, held positions at various private equity firms including Bain Capital and Wasserstein Perella Management Partners. Mr. Brotman has served on the board of directors of various ACON Investments portfolio companies since 1997 including several in the retail and consumer products sectors. Mr. Brotman received an M.B.A. from Harvard Business School and a B.S. in Economics from The Wharton School of the University of Pennsylvania. We believe Mr. Brotman’s extensive private equity investment and company strategy and oversight experience and background with respect to acquisitions, debt financings and equity financings makes him well-qualified to serve as a member and as the chairman of our board of directors.

Gino Dellomo has served on the board of directors of Funko, Inc. since its formation in April 2017, and on the board of directors of FAH, LLC since October 2015. Mr. Dellomo is a Director at ACON Investments, which he joined in October 2006. Since October 2006, he has also served on the board of directors of various ACON Investments portfolio companies. Between 2001 and 2006, Mr. Dellomo held various positions at various investment banks, including Deutsche Bank Securities, Inc., FBR Capital Markets & Co. and MCG Capital Corp. Mr. Dellomo received a B.S. in Finance from Georgetown University. We believe Mr. Dellomo’s private equity investment and company oversight experience and background with respect to acquisitions, debt financings and equity financings makes him well-qualified to serve as a member of our board of directors.

Charles Denson has served on the board of directors of Funko, Inc. since its formation in April 2017, and on the board of directors of FAH, LLC since June 2016. Mr. Denson has served as the President and Chief Executive Officer of Anini Vista Advisors, an advisory and consulting firm, since March 2014. From February 1979 until January 2014, Mr. Denson held various positions at NIKE, Inc., where he was appointed to several management roles, including, in 2001, President of the NIKE Brand, a position he held until January 2014. Mr. Denson also serves on the board of directors of the Naismith Memorial Basketball Hall of Fame, Inc. Mr. Denson serves on the board of directors of several privately held organizations. Mr. Denson received a B.A. in Business from Utah State University. We believe Mr. Denson’s extensive experience in brand building, brand management and organizational leadership in the public company context makes him well-qualified to serve on our board of directors.

Diane Irvine  has served on the board of directors of Funko, Inc. and FAH, LLC since August 2017. Ms. Irvine previously served as Chief Executive Officer of Blue Nile, Inc., an online retailer of diamonds and fine jewelry, from February 2008 until November 2011, as President from February 2007 until November 2011, and as Chief Financial Officer from December 1999 until September 2007. From February 1994 until May 1999, Ms. Irvine served as Vice President and Chief Financial Officer of Plum Creek Timber Company, Inc., and from September 1981 until February 1994, she worked at accounting firm Coopers & Lybrand LLP in various capacities, most recently as partner. Ms. Irvine currently serves on the boards of directors of XO Group Inc. (on whose board she has served since November 2014) and Yelp Inc. (on whose board she has served since September 2011), and previously served on the boards of directors of Rightside Group Ltd. from August 2014 until July 2017, CafePress, Inc. from July 2012 until May 2015, and Blue Nile, Inc. from May 2001 until November 2011. Ms. Irvine received an M.S. in Taxation and a Doctor of Humane Letters from Golden Gate University, and a B.S. in Accounting from Illinois State University. We believe Ms. Irvine’s extensive public company management experience and financial expertise make her well-qualified to serve on our board of directors.

 

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Adam Kriger has served on the board of directors of Funko, Inc. since its formation in April 2017, and on the board of directors of FAH, LLC since June 2016. Mr. Kriger is an Executive Partner at ACON Investments, which he joined in August 2017. Before that, Mr. Kriger served as the Senior Vice President of Global Strategy for McDonald’s Corporation from December 2001 until March 2015. He also previously served as the Senior Vice President of Global Strategy for Starwood Hotels & Resorts Worldwide from 1998 until 1999, and as the Vice President of Strategy and Development for The Walt Disney Company from 1988 until 1990, and then again from 1992 until 1998. Mr. Kriger serves on the boards of several non-profit organizations and private companies. Mr. Kriger received an M.B.A. from Harvard Business School and a B.A. in Quantitative Economics from Stanford University. We believe Mr. Kriger’s extensive strategic, risk management and organizational leadership experience in the public company context make him well-qualified to serve on our board of directors.

Richard McNally has served on the board of directors of Funko, Inc. since its formation in April 2017, on the board of directors of FAH, LLC since October 2015, and on the Board of Directors of FHL since May 2013, when he also served as Chairman of the Board. Mr. McNally was a founding investor in Fundamental, where he was an Operating Partner from 2003 to 2005 and has been a Partner since 2006. From 1999 until 2005, Mr. McNally held several consulting, advisory and executive roles. From 1994 until 1998, Mr. McNally served as the President of Armani Exchange and, from 1981 until 1993, held various management roles with The Gap, including Executive Vice president of its Banana Republic Division. Since 2008, Mr. McNally has served on the board of directors of various Fundamental portfolio companies and non-profit organizations. Mr. McNally received a B.A. in History and Latin American Studies from Princeton University. We believe Mr. McNally’s extensive brand-building, organizational leadership and private equity investment experience make him well-qualified to serve on our board of directors.

Composition of our Board of Directors

Our board of directors currently consists of seven directors. Our amended and restated certificate of incorporation will provide that the number of directors on our board of directors shall be fixed exclusively by resolution adopted by our board of directors subject to the written approval of ACON in accordance with the Stockholders Agreement (provided that such number shall not be less than the aggregate number of directors that the parties to the Stockholders Agreement are entitled to designate from time to time). Our amended and restated certificate of incorporation and amended and restated bylaws will provide that our board of directors will be divided into three classes, as nearly equal in number as possible, with the directors in each class serving for a three-year term, and one class being elected each year by our stockholders.

When considering whether directors have the experience, qualifications, attributes or skills, taken as a whole, to enable our board of directors to satisfy its oversight responsibilities effectively in light of our business and structure, the board of directors focuses primarily on each person’s background and experience as reflected in the information discussed in each of the directors’ individual biographies set forth above. We believe that our directors provide an appropriate mix of experience and skills relevant to the size and nature of our business.

Prior to the consummation of this offering, we will enter into the Stockholders Agreement with ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, pursuant to which each party thereto will agree to vote, or cause to be voted, all of their outstanding shares of our Class A common stock and Class B common stock at any annual or special meeting of stockholders in which directors are elected, so as to cause the election of the ACON Directors, the Fundamental Director and Mr. Mariotti for as long as he is our Chief Executive Officer. Immediately following the consummation of this offering, ACON will own              shares of Class A common stock of Funko, Inc. and              shares of Class B common stock of Funko, Inc., which combined represents approximately     % of the combined voting power of all of Funko, Inc.’s common stock; Fundamental will own              shares of

 

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Class B common stock of Funko, Inc., which represents approximately     % of the combined voting power of all of Funko, Inc.’s common stock; and Brian Mariotti, our Chief Executive Officer will own              shares of Class B common stock of Funko, Inc., which represents approximately     % of the combined voting power of all of Funko, Inc.’s common stock. ACON has designated Mr. Brotman, Mr. Dellomo and Mr. Kriger as nominees for election to our board of directors, and Fundamental has designated Mr. McNally as a nominee for election to our board of directors. For a description of the terms of the Stockholders Agreement, see “Certain Relationships and Related Party Transactions—Stockholders Agreement.”

In accordance with our amended and restated certificate of incorporation and amended and restated bylaws, each of which will be in effect immediately prior to the consummation of this offering, our board of directors will be divided into three classes with staggered three year terms. At each annual meeting of stockholders after the initial classification, the successors to the directors whose terms will then expire will be elected to serve from the time of election and qualification until the third annual meeting following their election. Our directors will be divided among the three classes as follows:

 

    the Class I directors will be              and             , and their terms will expire at the annual meeting of stockholders to be held in 2018;

 

    the Class II directors will be              and             , and their terms will expire at the annual meeting of stockholders to be held in 2019; and

 

    the Class III directors will be             ,              and             , and their terms will expire at the annual meeting of stockholders to be held in 2020.

Any increase or decrease in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. This classification of our board of directors may have the effect of delaying or preventing changes in control of our Company.

Pursuant to the terms of our amended and restated certificate of incorporation and the Stockholders Agreement, the ACON Directors and the Fundamental Director may only be removed with or without cause at the request of the party entitled to designate such director. In all other cases and at any other time, directors may only be removed for cause by the affirmative vote of the holders of at least a majority of the combined voting power of our Class A common stock and Class B common stock which are present in person or by proxy and entitled to vote.

Director Independence

Prior to the consummation of this offering, our board of directors undertook a review of the independence of our directors and considered whether any director has a relationship with us that could compromise that director’s ability to exercise independent judgment in carrying out that director’s responsibilities. Our board of directors has affirmatively determined that             ,              and             are each an “independent director,” as defined under the Nasdaq rules.

Controlled Company Exception

After the consummation of this offering, ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, will, in the aggregate, have more than 50% of the combined voting power for the election of directors. As a result, we will be a “controlled company” within the meaning of the Nasdaq rules and may elect not to comply with certain corporate governance standards, including that: (1) a majority of our board of directors consists of “independent directors,” as defined under the Nasdaq

 

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rules; (2) we have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; (3) we have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and (4) we perform annual performance evaluations of the nominating and corporate governance and compensation committees. We intend to rely on the foregoing exemptions provided to controlled companies under the Nasdaq rules. Therefore, immediately following the consummation of this offering, we may not have a majority of independent directors on our board of directors, an entirely independent nominating and corporate governance committee, an entirely independent compensation committee or perform annual performance evaluations of the nominating and corporate governance and compensation committees unless and until such time as we are required to do so. Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of these corporate governance requirements. In the event that we cease to be a “controlled company” and our shares continue to be listed on The Nasdaq Stock Market, we will be required to comply with these provisions within the applicable transition periods. See “Risk Factors—Risks Relating to Our Organizational Structure—We are a “controlled company” within the meaning of the Nasdaq rules and, as a result, will qualify for, and intend to rely on, exemptions from certain corporate governance requirements. You may not have the same protections afforded to stockholders of companies that are subject to such corporate governance requirements.”

Committees of Our Board of Directors

Our board of directors directs the management of our business and affairs, as provided by Delaware law, and conducts its business through meetings of the board of directors and its standing committees. We will have a standing audit committee, nominating and corporate governance committee and compensation committee. In addition, from time to time, special committees may be established under the direction of the board of directors when necessary to address specific issues.

Audit Committee

Our audit committee will be responsible for, among other things:

 

    appointing, compensating, retaining and overseeing our independent registered public accounting firm;

 

    discussing with our independent registered public accounting firm their independence from management;

 

    discussing with our independent registered public accounting firm any audit problems or difficulties and management’s response;

 

    approving all audit and permissible non-audit services to be performed by our independent registered public accounting firm;

 

    discussing with management and our independent registered public accounting firm the interim and annual financial statements that we file with the SEC;

 

    reviewing our policies on risk assessment and risk management;

 

    reviewing related person transactions; and

 

    establishing procedures for the confidential anonymous submission of complaints regarding questionable accounting, internal controls or auditing matters, and for the confidential anonymous submission of concerns regarding questionable accounting or auditing matters.

 

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Upon the consummation of this offering, our audit committee will consist of             ,              and             , with                  serving as chair. Rule 10A-3 of the Exchange Act and the Nasdaq rules require that our audit committee have at least one independent member upon the listing of our Class A common stock, have a majority of independent members within 90 days of the date of this prospectus and be composed entirely of independent members within one year of the date of this prospectus. Our board of directors has affirmatively determined that             ,              and             each meet the definition of “independent director” under the Nasdaq rules, that              meets the independence standards under Rule 10A-3, and that              does not meet the independence standards under Rule 10A-3. Each member of our audit committee meets the financial literacy requirements of the Nasdaq rules. In addition, our board of directors has determined that              will qualify as an “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K. Our board of directors will adopt a written charter for the audit committee, which will be available on our principal corporate website at www.funko.com substantially concurrently with the consummation of this offering. The information on any of our websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.

Nominating and Corporate Governance Committee

Our nominating and corporate governance committee will be responsible for, among other things:

 

    identifying individuals qualified to become members of our board of directors, consistent with criteria set forth in our corporate governance guidelines and in accordance with the terms of the Stockholders Agreement;

 

    annually reviewing the committee structure of the board of directors and recommending to the board of the directors the directors to serve as members of each committee; and

 

    developing and recommending to our board of directors a set of corporate governance guidelines.

Upon the consummation of this offering, our nominating and corporate governance committee will consist of             ,              and             , with              serving as chair. We intend to avail ourselves of the “controlled company” exception under the Nasdaq rules, which exempts us from the requirement that we have a nominating and corporate governance composed entirely of independent directors. Our board of directors will adopt a written charter for the nominating and corporate governance committee, which will be available on our principal corporate website at www.funko.com substantially concurrently with the consummation of this offering. The information on any of our websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.

Compensation Committee

Our compensation committee will be responsible for, among other things:

 

    reviewing and approving, or recommending that the board of directors approve, the compensation of our Chief Executive Officer and other executive officers;

 

    making recommendations to the board of directors regarding director compensation; and

 

    reviewing and approving incentive compensation and equity-based plans and arrangements and making grants of cash-based and equity-based awards under such plans.

Upon the consummation of this offering, our compensation committee will consist of             ,              and            , with              serving as chair. Our board has determined that             ,              and              are “non-employee directors” as defined in Section 16b-3 of the Exchange Act. We intend to avail ourselves of the “controlled company” exception under the Nasdaq rules, which exempts us from

 

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the requirement that we have a compensation committee composed entirely of independent directors. Our board of directors will adopt a written charter for the compensation committee, which will be available on our principal corporate website at www.funko.com substantially concurrently with the consummation of this offering. The information on any of our websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.

Risk Oversight

Our audit committee is responsible for overseeing our risk management process. Our audit committee focuses on our general risk management policies and strategy, the most significant risks facing us, and oversees the implementation of risk mitigation strategies by management. Our board of directors is also apprised of particular risk management matters in connection with its general oversight and approval of corporate matters and significant transactions.

Risk Considerations in our Compensation Program

We conducted an assessment of our compensation policies and practices for our employees and concluded that these policies and practices are not reasonably likely to have a material adverse effect on our Company.

Compensation Committee Interlocks and Insider Participation

None of our executive officers serves as a member of the board of directors or compensation committee (or other committee performing equivalent functions) of any entity that has one or more executive officers serving on our board of directors or compensation committee.

Code of Ethics and Code of Conduct

Prior to the completion of this offering, we will adopt a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. A copy of the code will be posted on our website, www.funko.com . In addition, we intend to post on our website all disclosures that are required by law or the Nasdaq rules concerning any amendments to, or waivers from, any provision of the code. The information on any of our websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.

 

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EXECUTIVE COMPENSATION

This section discusses the material components of the executive compensation program for our executive officers who are named in the “—2016 Summary Compensation Table” below. In 2016, our “named executive officers” and their positions were as follows:

 

    Brian Mariotti, Chief Executive Officer ;

 

    Russell Nickel, Chief Financial Officer ;

 

    Michael McBreen, who served as Chief Operating Officer until his resignation on August 28, 2017; and

 

    Tracy Daw, Senior Vice President, General Counsel and Secretary

On October 3, 2017, Andrew Perlmutter, previously our Senior Vice President of Sales, was appointed as our President.

This discussion may contain forward-looking statements that are based on our current plans, considerations, expectations and determinations regarding future compensation programs. Actual compensation programs that we adopt following the completion of this offering may differ materially from the currently planned programs summarized in this discussion.

2016 Summary Compensation Table

The following table sets forth information concerning the compensation of our named executive officers for the year ended December 31, 2016.

 

Name and Principal
Position

  Salary
($)
    Bonus
($)
    Stock
Awards (1)

($)
    Non-Equity
Incentive Plan
Compensation (5)
($)
    All Other
Compensation (6)

($)
    Total
($)
 

Brian Mariotti

    600,000                         24,721       624,721  

Chief Executive Officer

           

Russell Nickel

    266,667                   81,250       169,411       517,328  

Chief Financial Officer

           

Michael McBreen

    112,852 (2)             670,000       35,096       5,759       823,707  

Chief Operating Officer

           

Tracy Daw

    131,923 (3)       12,500 (4)       335,000       34,110       5,516       519,049  

Senior Vice President, General Counsel and Secretary

           

 

(1)   Amounts reflect the full grant-date fair value of profits interests, in the form of common units granted during 2016 computed in accordance with ASC Topic 718, rather than the amounts paid to or realized by the named individual. We provide information regarding the assumptions used to calculate the value of all common units made to executive officers in Note 12 to our audited consolidated financial statements included elsewhere in this prospectus.
(2)   Mr. McBreen served as Chief Operating Officer from August 31, 2016. The amount reflects his salary from his commencement date through December 31, 2016. Mr. McBreen resigned from the Company on August 28, 2017.
(3)   Mr. Daw has served as Senior Vice President, General Counsel and Secretary since July 18, 2016. The amount reflects his salary from his commencement date through December 31, 2016.
(4)   Amount reflects signing bonus paid to Mr. Daw in 2016.
(5)   Messrs. Nickel, McBreen and Daw’s non-equity incentive plan compensation was paid in April 2017. Mr. Mariotti’s non-equity incentive plan compensation was not determinable as of the date of this filing and is expected to be determined in October 2017.

 

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(6)   For each of our named executive officers, the amount includes matching contributions under our 401(k) plan ($2,000 for Mr. Mariotti, $2,167 for Mr. Nickel, and $2,333 for Mr. McBreen) and health and welfare plan premiums ($14,504 for Mr. Mariotti, $14,504 for Mr. Nickel, $3,426 for Mr. McBreen and $5,516 for Mr. Daw). For Mr. Mariotti, the amount also includes country club membership and related fees ($8,217). For Mr. Nickel the amount also includes a distribution equivalent payment ($152,740).

Outstanding Equity Awards at Fiscal Year-End

 

    Grant Date     Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
    Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
    Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
    Option Awards     Profits Interests  

Name

          Option
Exercise
Price ($)
    Option
Expiration
Date
    Number of
Profits
Interests
That Have
Not
Vested (#)
    Market
Value of
Profits
Interests
That Have
Not  Vested (1)
($)
 

Brian Mariotti

    12/21/2015                                     2,625 (2)       3,879,750  

Russell Nickel

    10/30/2015       545.68                   8.02       10/20/2023      
    12/21/2015                 750 (2)       502,500  

Michael McBreen

    12/29/2016                                     1,000 (3)        

Tracy Daw

    12/29/2016                                     500 (3)        

 

(1)   There is no public market for the profits interests. For purposes of this disclosure, we have valued the profits interests using a third-party valuation of the value per share of profits interests as of December 29, 2016. The amount reported above under the heading “Market Value of Profits Interests That Have Not Vested” reflects the intrinsic value of the profits interests as of December 29, 2016.
(2)   Amounts reflect profits interests in the form of common units. 25% of the profits interests granted became eligible to vest on December 21, 2016. The remaining 75% of the profits interests shall vest in three equal installments on the first three anniversaries of December 21, 2016. In connection with the Transactions, these profits interests will be converted into                  common units for Mr. Mariotti and                  common units for Mr. Nickel. Such common units will remain subject to vesting in accordance with the current vesting schedule.
(3)   Amounts reflect profits interests in the form of common units. 25% of the profits interests granted become eligible to vest in four equal installments on each of the first four anniversaries of August 31, 2016 for Mr. McBreen and July 18, 2016 for Mr. Daw. All of Mr. McBreen’s unvested common units were forfeited as of his date of resignation, August 28, 2017. In connection with the Transactions, these profits interests will be converted into                  common units for Mr. Daw and will remain subject to vesting in accordance with the current vesting schedule.

Narrative to Summary Compensation Table

Base Salaries

The named executive officers receive a base salary to compensate them for services rendered to our company. The base salary payable to each named executive officer is intended to provide a fixed component of compensation reflecting the executive’s skill set, experience, role and responsibilities. In 2016, we paid an aggregate annual base salary of $600,000 to Mr. Mariotti, $266,667 to Mr. Nickel, $350,000 to Mr. McBreen (pro-rated to $112,852 for his period of employment), and $300,000 to Mr. Daw (pro-rated to $131,923 for his period of employment). As of April 26, 2016, Mr. Nickel’s base salary was increased to $250,000 and as of August 26, 2016, Mr. Nickel’s base salary was increased to $325,000.

As of January 1, 2017, Mr. Mariotti’s base salary was adjusted to $627,300, Mr. Nickel’s base salary was adjusted to $348,300, Mr. Daw’s base salary was adjusted to $322,900, and Mr. McBreen’s base salary was adjusted to $368,800. As of April 2, 2017, Mr. Mariotti’s base salary was further adjusted to $1,000,000 to better reflect his roles and responsibilities.

Annual Bonuses

In addition to base salaries, our executive officers are eligible to receive annual performance-based cash bonuses based on the achievement of corporate objectives and individual performance. In

 

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2016, each of our named executive officers was eligible to earn such annual performance-based cash bonus. For 2016, Mr. Mariotti’s annual bonus was calculated as (1) an amount equal to 1% of “incremental EBITDA” plus (2) an amount equal to 2% of “incremental gross profit” (as each of the terms is defined in the Mariotti Employment Agreement). The 2016 bonus for each of Mr. Nickel, Mr. McBreen and Mr. Daw was based upon the achievement of our Adjusted EBITDA target. Mr. Nickel was eligible to receive a target bonus the amount of 25% of his annual base salary, Mr. McBreen was eligible to receive a target bonus in the amount of 30% of his annual base salary (as pro-rated for his partial year of service in 2016) and Mr. Daw was eligible to receive a target bonus in the amount of 25% of his annual base salary (as pro-rated for his partial year of service in 2016), in each case, upon the achievement of the applicable objectives. In 2016, our Adjusted EBITDA was 102% of the target amount, resulting in a payment to Mr. Nickel of 100% of his target bonus amount, to Mr. McBreen of 100% of his target bonus amount, and to Mr. Daw of 100% of his target bonus amount. For additional information about the annual bonuses, please see “—Executive Compensation Arrangements” below. The actual annual cash bonuses awarded to each named executive officer for 2016 performance are set forth above in the Summary Compensation Table in the column entitled “Non-Equity Incentive Plan Compensation.”

Equity Compensation

Profits Interests .    Pursuant to the FAH LLC Agreement, certain of our employees, including each of our named executive officers currently hold profits interest in FAH, LLC in the form of common units. 12,594 common units are available for issuance under the FAH LLC Agreement. In 2016, Mr. McBreen and Mr. Daw were granted 1,000 and 500 common units, respectively, and no common units were granted to Mr. Mariotti or Mr. Nickel. The common units generally vest annually over four years from the first anniversary of the applicable vesting date (December 21, 2015 for Mr. Mariotti and Mr. Nickel, August 31, 2016 for Mr. McBreen and July 18, 2016 for Mr. Daw), subject to the individual’s continued employment with us. Notwithstanding the foregoing, the common units accelerate and vest in full in the event (1) that ACON receives a multiple on invested capital (calculated on a cash-in, cash-out basis) over the term of its investment in FAH, LLC equal to or in excess of two times or (2) a “change in control” occurs (as such term is defined in the applicable common unit grant agreement). All of Mr. McBreen’s unvested common units were forfeited as of his date of resignation, August 28, 2017.

Additionally, certain of our employees, including Mr. Mariotti and Mr. Nickel have been granted Home Run Units pursuant to the FAH LLC Agreement, or HR Units (and we refer to the common units and HR Units together as the profits interests). 11,724 HR Units are authorized for issuance under the FAH LLC Agreement. Mr. Mariotti and Mr. Nickel have been granted 1,838.95 and 77.14 HR Units, respectively. The HR Units were fully vested at the time of grant. No HR Units were granted in 2016.

For additional information about all outstanding profits interests held by our named executive officers, please see the “Outstanding Equity Awards at Fiscal Year End” table above.

Options .    We currently sponsor the FAH, LLC 2015 Option Plan, or the 2015 Option Plan, pursuant to which certain of our employees, including Mr. Nickel were granted options to purchase Class A Units in FAH, LLC. 3,499.71 Class A Units are reserved for issuance under the 2015 Option Plan. As of December 31, 2016, options to purchase 3,449.71 Class A Units were outstanding, with a weighted average exercise price of $66.76. For additional information about all outstanding options held by our named executive officers, please see the “Outstanding Equity Awards at Fiscal Year End” table above. In connection with the Transactions, all such options will be converted into options with respect to common units.

 

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Other Elements of Compensation

Retirement Plans .    We currently maintain the Funko 401(k) Plan, a defined contribution retirement and savings plan, for the benefit of our employees, including our named executive officers, who satisfy certain eligibility requirements. Our named executive officers are eligible to participate in the 401(k) Plan on the same terms as other full-time employees. The Code allows eligible employees to defer a portion of their compensation, within prescribed limits, on a pre-tax basis through contributions to the 401(k) Plan. Currently, we match contributions made by participants in the 401(k) Plan up to 4% of the employee earnings, and these matching contributions are fully vested as of the date on which the contribution is made. We believe that providing a vehicle for tax-deferred retirement savings though our 401(k) Plan, and making fully vested matching contributions, adds to the overall desirability of our executive compensation package and further incentivizes our employees, including our named executive officers, in accordance with our compensation policies.

Health/Welfare Plans .    All of our full-time employees, including our named executive officers, are eligible to participate in our health and welfare plans, including:

 

    medical, dental and vision benefits;

 

    medical and dependent care flexible spending accounts;

 

    short-term and long-term disability insurance; and

 

    life insurance.

Perquisites .     We believe the perquisites described above are necessary and appropriate to provide a competitive compensation package to our named executive officers.

Employee Loans .    In October 2015, Mr. Nickel and Mr. Perlmutter entered into secured promissory notes payable to Funko, LLC in the principal amount of $150,000 and $100,000, respectively. Amounts outstanding under the promissory notes were secured by all direct or indirect ownership interests of Mr. Nickel and Mr. Perlmutter (as applicable) in FAH, LLC (or any corporate successor of FAH, LLC), and were required to be repaid, in full or in part, with 100% of the after-tax portion of any cash distribution or dividend in respect of, or upon the transfer, sale or other disposition of, the Class A Units of FAH, LLC. On October 5, 2017, FAH, LLC forgave the promissory notes in full for both Mr. Nickel and Mr. Perlmutter. See “Certain Relationships and Related Party Transactions—Related Party Agreements in Effect Prior to this Offering—Notes Payable.”

No Tax Gross-Ups .    We do not make gross-up payments to cover our named executive officers’ personal income taxes that may pertain to any of the compensation or perquisites paid or provided by our company.

Executive Compensation Arrangements

Brian Mariotti Employment Agreement

Mr. Mariotti serves as our Chief Executive Officer pursuant to an employment agreement, dated as of October 30, 2015, or the Mariotti Employment Agreement. Pursuant to the Mariotti Employment Agreement, Mr. Mariotti receives an annual base salary (currently $1,000,000) and is eligible to participate in standard benefit plans. Mr. Mariotti is also eligible to receive an annual bonus payment with the amount of such annual bonus to be set by the board of directors each year. For 2016, Mr. Mariotti’s annual bonus was calculated as (1) an amount equal to 1% of “incremental EBITDA” plus (2) an amount equal to 2% of “incremental gross profit” (as each of the terms is defined in the Mariotti Employment Agreement). The Mariotti Employment Agreement also contains standard non-solicitation and confidentiality provisions.

 

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If Mr. Mariotti is terminated by us without “Cause” or by Mr. Mariotti for “Good Reason” (as such terms are defined below), then in addition to any accrued amounts and subject to Mr. Mariotti timely delivering an effective release of claims in our favor, Mr. Mariotti is entitled to receive (1) payment of COBRA premiums, if Mr. Mariotti timely elects and maintains COBRA coverage, to the same extent premiums for the same coverage would be paid by us had Mr. Mariotti remained employed, for a period of 12 months after the date of termination, (2) a pro-rata portion of his annual bonus payment for the fiscal year in which termination occurs, assuming achievement of any applicable performance objectives, paid in a lump sum within 60 days of Mr. Mariotti’s termination, and (3) 12 months of his base salary, paid in installments over 12 months in accordance with standard payroll practices.

Pursuant to the Mariotti Employment Agreement, we have the right to terminate Mr. Mariotti for “Cause” upon any of the following events: (1) Mr. Mariotti’s commission of any act or omission that involves theft, fraud, embezzlement, or a felony; (2) Mr. Mariotti’s conviction of, or the entry of a plea of guilty or nolo contendere to, a crime involving moral turpitude or other crime that FAH, LLC reasonably determines (a) may bring us into public disrepute or disgrace, or (b) may cause material injury to our customer relations, operations or business prospects; (3) Mr. Mariotti’s material abuse of alcohol or material use of controlled drugs (other than in accordance with a physician’s prescription) which is reasonably determined by FAH, LLC to have an adverse effect on us or our reputation; (4) Mr. Mariotti’s commission of any act or omission that constitutes financial or other material dishonesty against us or creates a conflict of interest with us; (5) a willful and intentional act by Mr. Mariotti that is, in our reasonable determination, materially injurious to us or our affiliates, financially or otherwise; (6) Mr. Mariotti’s breach of fiduciary duty to us; (7) Mr. Mariotti’s material breach of a written agreement between us; (8) Mr. Mariotti’s repeated dereliction of duty to us; or (9) Mr. Mariotti’s refusal or failure to follow the lawful directives of the FAH, LLC or its designees.

Mr. Mariotti may terminate his employment with us at any time with “Good Reason” upon the occurrence or existence of any of the following: (1) Mr. Mariotti’s duties or responsibilities are materially diminished or Mr. Mariotti is assigned duties that are demeaning or are otherwise materially inconsistent with the duties then currently performed by him; (2) Mr. Mariotti’s base compensation is materially reduced from the annual rate then currently in effect; or (3) without a corresponding relative reduction in all our employees’ benefits, Mr. Mariotti’s benefits are reduced materially in the aggregate from those then currently in effect. Mr. Mariotti must give us written notice of his intention to terminate for Good Reason within 90 days after the event triggering Good Reason and we have 15 days after receiving such written notice to remedy the situation, if possible.

Russell Nickel Offer Letter

Mr. Nickel serves as our Chief Financial Officer pursuant to an offer letter dated as of September 29, 2013. Pursuant to his offer letter, Mr. Nickel receives an annual base salary (currently $348,300) and is eligible to participate in standard benefit plans. Mr. Nickel is also eligible for an annual bonus of up to 25% of his annual base salary based on achievement of annually established goals. Mr. Nickel is also party to a Confidentiality, Non-compete and Non-Solicitation Agreement which contains a two-year post-termination non-solicitation provision.

Michael McBreen Offer Letter

Until his resignation on August 28, 2017, Mr. McBreen served as our Chief Operating Officer pursuant to an offer letter dated as of July 15, 2016. Pursuant to his offer letter, Mr. McBreen received an annual base salary ($368,800) and was eligible to participate in standard benefit plans. Mr. McBreen was also eligible for an annual bonus of up to 30% of his annual base salary. His offer letter also provided for the reimbursement of any reasonable moving expenses for moves associated with Mr. McBreen’s relocation to Washington, within the first year of his employment. Mr. McBreen is

 

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party to a Confidentiality, Non-compete and Non-Solicitation Agreement which contains a two-year post-termination non-solicitation provision

Michael McBreen Separation Agreement

Mr. McBreen resigned from the Company and entered into a separation agreement as of August 28, 2017. Pursuant to such agreement, in consideration for Mr. McBreen’s release of claims, we agreed to provide Mr. McBreen a severance payment equal to six months of his current salary paid in a lump sum and payment of the employer and employee cost of continuation of medical coverage pursuant to COBRA for 12 months.

Tracy Daw Offer Letter

Mr. Daw serves as our Senior Vice President, General Counsel pursuant to an offer letter dated as of June 15, 2016. Pursuant to his offer letter, Mr. Daw receives an annual base salary (currently $322,900) and is eligible to participate in standard benefit plans. Mr. Daw is also eligible for an annual bonus of up to 25% of his annual base salary and received a one-time sign-on bonus of $12,500. Mr. Daw is also party to a Confidentiality, Non-compete and Non-Solicitation Agreement which contains a two-year post-termination non-solicitation provision

Director Compensation

During 2016, certain of our directors received cash compensation for their services as directors. Certain directors were also granted common units. The following table sets forth certain information with respect to cash compensation paid to our directors for 2016 service and common units granted to our directors in 2016.

 

Name (1)

   Fees Earned
or Paid in
Cash

($)
    Stock
Awards (2)

($)
     Total
($)
 

Kenneth R. Brotman

                   

Gino Dellomo

                   

Richard McNally

                   

Adam Kriger

     10,000 (3)       140,030        150,030  

Charles Denson

     10,000 (3)       140,030        150,030  

 

(1)   Mr. Mariotti has been excluded from this table because his compensation is fully reflected in the Summary Compensation Table for executive officers.
(2)   Amounts reflect the full grant-date fair value of profits interests, in the form of common units granted during 2016 computed in accordance with ASC Topic 718, rather than the amounts paid to or realized by the named individual. We provide information regarding the assumptions used to calculate the value of all common unit grants made to our directors in Note 12 to our audited consolidated financial statements included elsewhere in this prospectus.
(3)   Mr. Kriger and Mr. Denson have served as non-employee directors since June 30, 2016. The amount reflects their fees from their commencement date through December 31, 2016.

 

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The table below shows the aggregate numbers of unvested profits interests, in the form of common units held as of December 31, 2016 by each non-employee director who was serving as of December 31, 2016.

 

Name (1)

   Unvested Profits
Interests Outstanding
at Fiscal Year End
 

Kenneth R. Brotman

      

Gino Dellomo

      

Richard McNally

      

Adam Kriger

     182.87 (2)  

Charles Denson

     182.87 (2)  

 

(1)   Mr. Mariotti has been excluded from this table because his incentive equity is fully reflected in the Outstanding Equity Awards at Fiscal Year End table for executive officers.
(2) 12.5% of the common units vest on the last business day of each calendar quarter commencing on December 31, 2016. Notwithstanding the foregoing, the common units accelerate and vest in full if (a) ACON receives a multiple on invested capital (calculated on a cash-in, cash-out basis) over the term of its investment in FAH, LLC equal to or in excess of two times or (b) a “change in control” occurs (as such term is defined in the applicable common unit grant agreement). On each of March 31, 2017, June 30, 2017 and September 30, 2017, 26.125 common units vested for each of Mr. Kriger and Mr. Denson. In connection with the Transactions, these profits interests will be converted into                  common units for Mr. Kriger and                  common units for Mr. Denson. Such common units will remain subject to vesting in accordance with the current vesting schedule.

On August 17, 2017, Diane Irvine was appointed to our board of directors. She receives annual cash compensation of $20,000, payable in quarterly installments.

Equity Compensation Plans

2015 Option Plan

FAH, LLC currently sponsors the 2015 Option Plan, in order to attract and retain the best available personnel, to provide additional incentives to employees and to promote the success of the business. Awards granted under the 2015 Option Plan are in the form of options to purchase Class A Units of FAH, LLC. Approximately six of our employees, including Mr. Nickel, hold outstanding options under the 2015 Option Plan. 3,449.71 Class A Units are reserved for issuance under the 2015 Option Plan. As of December 31, 2016, options to purchase 3,449.71 Class A Units were outstanding, with a weighted average exercise price of $66.76.

Any person, including any officer, who is employed by FAH, LLC or its related entities and each of our members is eligible to participate in the 2015 Option Plan. The board of directors of FAH, LLC or the committee of the board of directors that administers the 2015 Option Plan has the authority to select participants to whom options may be granted, to determine whether and to what extent options are granted, to determine the number of Class A Units or the amount of other consideration to be covered by each option, to approve forms of option agreements, to determine the terms and conditions of any option granted, to amend the terms of any outstanding option granted, to construe and interpret the terms of the 2015 Option Plan, and to take such other action, not inconsistent with the terms of the 2015 Option Plan as it deems appropriate. The exercise price per Class A Unit subject to an option granted under the 2015 Option Plan is also established by the plan administrator and it may not be less than the fair market value per Class A Unit as of the date of grant. The plan administrator has broad discretion to take action under the 2015 Option Plan, as well as make adjustments to the terms and conditions of existing and future awards, to prevent the dilution or enlargement of intended benefits and facilitate necessary or desirable changes in the event of certain transactions and events affecting the Class A Units of FAH, LLC, such as a merger or consolidation in which FAH, LLC is not the surviving entity, the sale, transfer or other disposition of all or substantially all of the assets of FAH,

 

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LLC, any reverse merger or series of related transactions culminating in a reverse merger, or an acquisition in a single or series of related transactions by any person or related group of persons of beneficial ownership of securities possessing more than 50% of the total combined voting power of FAH, LLC’s outstanding securities. The options granted under the 2015 Option Plan may have a maximum term of not greater than ten years. The board of directors of FAH, LLC may at any time amend, suspend or terminate the 2015 Option Plan, with the approval of the members of FAH, LLC, to the extent necessary to comply with applicable laws and the FAH LLC Agreement. In connection with the Transactions, all such options will be converted into options with respect to common units.

New Employment Agreements and Incentive Plans

New Employment Agreements

In connection with this offering, we entered into employment agreements with two of our named executive officers, Messrs. Nickel, and Daw. These agreements will become effective as of the date of the consummation of this offering. In addition, we entered into a new employment agreement with Mr. Perlmutter, who became our President in October 2017. The material terms of such agreements are summarized below.

Employment Term and Position

The term of employment of each of Messrs. Nickel, Daw and Perlmutter will be three years from the date of this offering, subject to two automatic one-year extensions provided that neither party provides prior written notice of non-extension of the then-current term. During their respective terms of employment Mr. Nickel will continue to serve as our Chief Financial Officer, Mr. Daw will continue to serve as our Senior Vice President, General Counsel and Secretary and Mr. Perlmutter will continue to serve as our President.

Base Salary, Annual Bonus

Pursuant to their employment agreements, Messrs. Nickel, Daw and Perlmutter will be entitled to annual base salaries of $373,300, $347,900 and $500,000, respectively. Additionally, the executives will be eligible to receive annual performance-based cash bonuses upon the attainment of individual and company performance goals established by our board of directors or the compensation committee. The amount of the annual performance-based cash bonus that may be received by Messrs. Nickel, Daw and Perlmutter upon attainment of target performance for any fiscal year will be 25%, 25% and 100% of base salary, respectively.

Severance

Each employment agreement provides for severance upon a termination by us without cause or by Messrs. Nickel, Daw and Perlmutter for good reason, in each case, subject to the execution and non-revocation of a waiver and release of claims by the executive officer.

Upon a termination of employment by us without cause or by the executive officer for good reason, Messrs. Nickel, Daw and Perlmutter, as applicable, will be entitled to severance consisting of either (a) continuation of base salary for up to twelve months, payable in twelve equal monthly installments and reimbursement of up to twelve months for the employer portion of premium payments for any COBRA coverage such executive officer elects, if (i) such executive officer has been an employee of the company or its affiliates for at least two years prior to the date of termination or (ii) if such executive officer is terminated on or within twelve months of a change in control or (b) continuation of base salary for up to six months, payable in six equal monthly installments and

 

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reimbursement of up to six months for the employer portion of premium payments for any COBRA coverage executive officer elects, if such executive officer has been an employee of the company or its affiliates for less than two years prior to the date of termination and such termination is not on or within twelve months of a change in control.

For purposes of the employment agreements, we will have “cause” to terminate each executive officer’s employment upon any of the following (a) gross neglect or willful misconduct by executive officer of his duties or executive officer’s willful failure to carry out, or comply with, in any material respect any lawful and reasonable directive of our board of directors that not inconsistent with the terms of his employment agreement; (b) executive officer’s conviction of, or plea of no contest, plea of nolo contendere or imposition of adjudicated probation with respect to, any felony or crime involving moral turpitude or executive’s indictment for any felony or crime involving moral turpitude; (c) executive officer’s habitual unlawful use (including being under the influence) or possession of illegal drugs on our premises or while performing his duties and responsibilities under his employment agreement; (d) executive officer’s commission at any time of any act of fraud, embezzlement, misappropriation, material misconduct, or breach of fiduciary duty against us; or (e) executive officer’s material breach of any non-compete or non-solicitation covenant; provided that we must provide executive with fifteen days prior written notice before any such termination in (a) or (e) (other than to the extent that (a) relates to any fraud or intentional misconduct) with an opportunity to meet with our board of directors and discuss or cure any such alleged violation.

For purposes of the employment agreements, each executive officer will have “good reason” to terminate his employment after the occurrence of (a) a material adverse change in his title or reporting line or material duties, authorities or responsibilities, as determined by our board of directors; (b) a material breach by us of any material provision of the employment agreement; (c) a material reduction of executive officer’s base salary or benefits or target bonus opportunity (other than such a reduction that is generally consistent with a general reduction affecting other similarly situated executive officers); (d) failure by us to pay any portion of executive officer’s earned base salary or bonus; or (e) our requiring executive officer to be headquartered at any office or location more than 50 miles from Everett, Washington, provided that in the case of all the above events, executive officer may not resign from his employment for good reason unless he provides us written notice within 90 days after the initial occurrence of the event and at least 60 days prior to the date of termination, and we have not corrected the event prior to the date of termination.

Restrictive Covenants

Pursuant to their respective employment agreements, each executive officer will be subject to certain non-competition and non-solicitation restrictions for a twelve-month period after termination of employment. During the restricted period, each executive officer may not be engaged in activities or businesses that compete, directly or indirectly, with us including businesses that manufacture, market, license, distribute or sell licensed pop culture products. The employment agreements also contain a perpetual mutual non-disparagement covenant.

2017 Incentive Award Plan

We intend to adopt the 2017 Incentive Award Plan, or the 2017 Plan, subject to approval by our stockholders, under which we may grant cash and equity-based incentive awards to eligible service providers in order to attract, motivate and retain the talent for which we compete. The material terms of the Plan, as it is currently contemplated, are summarized below. Our board of directors is still in the process of developing, approving and implementing the 2017 Plan and, accordingly, this summary is subject to change.

 

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Eligibility and Administration.     Our employees, consultants and directors, and employees, consultants and directors of our subsidiaries will be eligible to receive awards under the 2017 Plan. Following our initial public offering, the 2017 Plan will be administered by our board of directors with respect to awards to non-employee directors and by our compensation committee with respect to other participants, each of which may delegate its duties and responsibilities to committees of our directors and/or officers (referred to collectively as the plan administrator below), subject to certain limitations that may be imposed under Section 162(m) of the Code, Section 16 of the Exchange Act, and/or stock exchange rules, as applicable. The plan administrator will have the authority to make all determinations and interpretations under, prescribe all forms for use with, and adopt rules for the administration of, the 2017 Plan, subject to its express terms and conditions. The plan administrator will also set the terms and conditions of all awards under the 2017 Plan, including any vesting and vesting acceleration conditions.

Notes Payable

Limitation on Awards and Shares Available.     An aggregate of              shares of our Class A common stock will initially be available for issuance under awards granted pursuant to the Plan, which shares may be authorized but unissued shares, or shares purchased in the open market. If an award under the 2017 Plan is forfeited, expires or is settled for cash, any shares subject to such award may, to the extent of such forfeiture, expiration or cash settlement, be used again for new grants under the 2017 Plan. However, the following shares may not be used again for grant under the 2017 Plan: (1) shares tendered or withheld to satisfy grant or exercise price or tax withholding obligations associated with an award; (2) shares subject to a stock appreciation right, or SAR, that are not issued in connection with the stock settlement of the SAR on its exercise; and (3) shares purchased on the open market with the cash proceeds from the exercise of options.

Awards granted under the 2017 Plan upon the assumption of, or in substitution for, awards authorized or outstanding under a qualifying equity plan maintained by an entity with which we enter into a merger or similar corporate transaction will not reduce the shares available for grant under the 2017 Plan. The maximum number of shares of our Class A common stock that may be subject to one or more awards granted to any director pursuant to the 2017 Plan during any calendar year will be              and the maximum amount that may be paid under a cash award pursuant to the 2017 Plan to any one participant during any calendar year period will be $            .

Awards.     The 2017 Plan provides for the grant of stock options, including incentive stock options, or ISOs, and nonqualified stock options, or NSOs, restricted stock, dividend equivalents, stock payments, restricted stock units, or RSUs, performance shares, other incentive awards, stock appreciation rights, or SARs, and cash awards. No determination has been made as to the types or amounts of awards that will be granted to specific individuals pursuant to the 2017 Plan. Certain awards under the 2017 Plan may constitute or provide for a deferral of compensation, subject to Section 409A of the Code, which may impose additional requirements on the terms and conditions of such awards. All awards under the 2017 Plan will be set forth in award agreements, which will detail all terms and conditions of the awards, including any applicable vesting and payment terms and post-termination exercise limitations. Awards other than cash awards generally will be settled in shares of our Class A common stock, but the plan administrator may provide for cash settlement of any award. A brief description of each award type follows.

 

   

Stock Options.     Stock options provide for the purchase of shares of our Class A common stock in the future at an exercise price set on the grant date. ISOs, by contrast to NSOs, may provide tax deferral beyond exercise and favorable capital gains tax treatment to their holders if certain holding period and other requirements of the Code are satisfied. The exercise price of a stock option may not be less than 100% of the fair market value of the underlying share on the

 

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date of grant (or 110% in the case of ISOs granted to certain significant stockholders), except with respect to certain substitute options granted in connection with a corporate transaction. The term of a stock option may not be longer than ten years (or five years in the case of ISOs granted to certain significant stockholders). Vesting conditions determined by the plan administrator may apply to stock options and may include continued service, performance and/or other conditions.

 

    SARs.     SARs entitle their holder, upon exercise, to receive from us an amount equal to the appreciation of the shares subject to the award between the grant date and the exercise date. The exercise price of a SAR may not be less than 100% of the fair market value of the underlying share on the date of grant (except with respect to certain substitute SARs granted in connection with a corporate transaction) and the term of a SAR may not be longer than ten years. Vesting conditions determined by the plan administrator may apply to SARs and may include continued service, performance and/or other conditions.

 

    Restricted Stock, RSUs and Performance Shares .     Restricted stock is an award of nontransferable shares of our Class A common stock that remain forfeitable unless and until specified conditions are met, and which may be subject to a purchase price. RSUs are contractual promises to deliver shares of our Class A common stock in the future, which may also remain forfeitable unless and until specified conditions are met. Delivery of the shares underlying RSUs may be deferred under the terms of the award or at the election of the participant, if the plan administrator permits such a deferral. Performance shares are contractual rights to receive a range of shares of our Class A common stock in the future based on the attainment of specified performance goals, in addition to other conditions which may apply to these awards. Conditions applicable to restricted stock, RSUs and performance shares may be based on continuing service, the attainment of performance goals and/or such other conditions as the plan administrator may determine.

 

    Stock Payments, Other Incentive Awards and Cash Awards .     Stock payments are awards of fully vested shares of our Class A common stock that may, but need not, be made in lieu of base salary, bonus, fees or other cash compensation otherwise payable to any individual who is eligible to receive awards. Other incentive awards are awards other than those enumerated in this summary that are denominated in, linked to or derived from shares of our Class A common stock or value metrics related to our shares, and may remain forfeitable unless and until specified conditions are met. Cash awards are cash incentive bonuses subject to performance goals.

 

    Dividend Equivalents .     Dividend equivalents represent the right to receive the equivalent value of dividends paid on shares of our Class A common stock and may be granted alone or in tandem with awards other than stock options or SARs. Dividend equivalents are credited as of dividend record dates during the period between the date an award is granted and the date such award vests, is exercised, is distributed or expires, as determined by the plan administrator. Dividend equivalents may not be paid on awards granted under the Plan unless and until such awards have vested.

Performance Awards .      Performance awards include any of the foregoing awards that are granted subject to vesting and/or payment based on the attainment of specified performance goals. The plan administrator will determine whether performance awards are intended to constitute “qualified performance-based compensation,” or QPBC, within the meaning of Section 162(m) of the Code, in which case the applicable performance criteria will be selected from the list below in accordance with the requirements of Section 162(m) of the Code.

Section 162(m) of the Code imposes a $1,000,000 cap on the compensation deduction that a public company may take in respect of compensation paid to our “covered employees” (which should

 

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include our Chief Executive Officer and our next three most highly compensated employees other than our Chief Financial Officer), but excludes from the calculation of amounts subject to this limitation any amounts that constitute QPBC. Under current tax law, we do not expect Section 162(m) of the Code to apply to certain awards under the 2017 Plan until the earliest to occur of: (1) our annual stockholders’ meeting at which members of our board of directors are to be elected that occurs after the close of the third calendar year following the calendar year in which occurred the first registration of our equity securities under Section 12 of the Exchange Act; (2) a material modification of the 2017 Plan; (3) an exhaustion of the share supply under the 2017 Plan; and (4) the expiration of the 2017 Plan. However, QPBC performance criteria may be used with respect to performance awards that are not intended to constitute QPBC. In addition, the company may issue awards that are not intended to constitute QPBC even if such awards might be non-deductible as a result of Section 162(m) of the Code.

In order to constitute QPBC under Section 162(m) of the Code, in addition to certain other requirements, the relevant amounts must be payable only upon the attainment of pre-established, objective performance goals set by our compensation committee and linked to stockholder-approved performance criteria. For purposes of the 2017 Plan, one or more of the following performance criteria will be used in setting performance goals applicable to QPBC, and may be used in setting performance goals applicable to other performance awards: (1) net earnings (either before or after one or more of the following: (a) interest, (b) taxes, (c) depreciation, (d) amortization and (e) non-cash equity-based compensation expense); (2) gross or net sales or revenue; (3) net income (either before or after taxes); (4) adjusted net income; (5) operating earnings or profit; (6) cash flow (including, but not limited to, operating cash flow and free cash flow); (7) return on assets; (8) return on capital; (9) return on stockholders’ equity; (10) total stockholder return; (11) return on sales; (12) gross or net profit or operating margin; (13) costs; (14) funds from operations; (15) expenses; (16) working capital; (17) earnings per share; (18) adjusted earnings per share; (19) price per share of our Class A common stock; (20) regulatory body approval for commercialization of a product; (21) implementation or completion of critical projects; (22) market share; (23) economic value; (24) debt levels or reduction; (25) sales-related goals; (26) comparisons with other stock market indices; (27) operating efficiency; (28) employee satisfaction; (29) financing and other capital raising transactions; (30) recruiting and maintaining personnel; and (31) year-end cash, any of which may be measured either in absolute terms for us or any operating unit of our company or as compared to any incremental increase or decrease or as compared to results of a peer group or to market performance indicators or indices. The 2017 Plan also permits the plan administrator to provide for objectively determinable adjustments to the applicable performance criteria in setting performance goals for QPBC awards.

Certain Transactions.     The plan administrator has broad discretion to take action under the 2017 Plan, as well as make adjustments to the terms and conditions of existing and future awards, to prevent the dilution or enlargement of intended benefits and facilitate necessary or desirable changes in the event of certain transactions and events affecting our Class A common stock, such as stock dividends, stock splits, mergers, acquisitions, consolidations and other corporate transactions. In addition, in the event of certain non-reciprocal transactions with our stockholders known as “equity restructurings,” the plan administrator will make equitable adjustments to the 2017 Plan and outstanding awards. In the event of a change in control of our company (as defined in the 2017 Plan), to the extent that the surviving entity declines to continue, convert, assume or replace outstanding awards, then all such awards will become fully vested and exercisable in connection with the transaction. Upon or in anticipation of a change of control, the plan administrator may cause any outstanding awards to terminate at a specified time in the future and give the participant the right to exercise such awards during a period of time determined by the plan administrator in its sole discretion. Individual award agreements may provide for additional accelerated vesting and payment provisions.

 

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Foreign Participants, Claw-Back Provisions, Transferability, and Participant Payments.     The plan administrator may modify award terms, establish subplans and/or adjust other terms and conditions of awards, subject to the share limits described above, in order to facilitate grants of awards subject to the laws and/or stock exchange rules of countries outside of the United States. All awards will be subject to the provisions of any claw-back policy implemented by our company to the extent set forth in such claw-back policy and/or in the applicable award agreement. With limited exceptions for estate planning, domestic relations orders, certain beneficiary designations and the laws of descent and distribution, awards under the 2017 Plan are generally non-transferable prior to vesting, and are exercisable only by the participant. With regard to tax withholding, exercise price and purchase price obligations arising in connection with awards under the 2017 Plan, the plan administrator may, in its discretion, accept cash or check, shares of our Class A common stock that meet specified conditions, a “market sell order” or such other consideration as it deems suitable.

Plan Amendment and Termination.     Our board of directors may amend or terminate the 2017 Plan at any time; however, except in connection with certain changes in our capital structure, stockholder approval will be required for any amendment that increases the number of shares available under the 2017 Plan, “reprices” any stock option or SAR, or cancels any stock option or SAR in exchange for cash or another award when the option or SAR price per share exceeds the fair market value of the underlying shares. No award may be granted pursuant to the 2017 Plan after the tenth anniversary of the date on which our board of directors adopts the 2017 Plan.

2017 Executive Annual Incentive Plan

Prior to the completion of this offering, our board of directors intends to adopt the Funko, Inc. Executive Annual Incentive Plan, or the Executive Incentive Plan. Upon completion of this offering, annual award opportunities for certain key employees, including our named executive officers, will be granted under the Executive Incentive Plan. The following summary describes what we anticipate to be the material terms of the Executive Incentive Plan.

Administration .    The Executive Incentive Plan will be administered by the compensation committee.

Eligibility .    Executive officers and other key employees of the company and its affiliates will be selected from time to time by the compensation committee to participate in the Executive Incentive Plan.

Awards .    Award opportunities under the Executive Incentive Plan will be granted by the compensation committee prior to, or within a specified period of time following the beginning of, the fiscal year of the Company (or other performance period selected by the compensation committee). The compensation committee will establish the performance criteria applicable to the award, the amount or amounts payable if the performance criteria are achieved, and such other terms as the compensation committee deems appropriate. The Executive Incentive Plan permits the grant of awards that are intended to qualify as exempt performance-based compensation under Section 162(m) of the Code as well as awards that are not intended to so qualify.

Performance Criteria .    Awards under the Executive Incentive Plan will be made based on, and subject to achieving, “performance criteria” established by the compensation committee. Performance criteria for awards intended to qualify as performance-based compensation for purposes of Section 162(m) of the Code are limited to the objectively determinable measures of performance relating to any or any combination of the following (measured either absolutely or by reference to an index or indices or the performance of one or more companies and determined either on a consolidated basis or, as the context permits, on a divisional, subsidiary, line of business, project or

 

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geographical basis or in combinations thereof): net sales; system-wide sales; comparable store sales; revenue; revenue growth or product revenue growth; operating income (before or after taxes); adjusted operating income; adjusted net income; adjusted earnings per share; channel revenue; channel revenue growth; franchising commitments; manufacturing profit; manufacturing profit margin; store closures; pre- or after-tax income or loss (before or after allocation of corporate overhead and bonus); earnings or loss per share; net income or loss (before or after taxes); return on equity; total stockholder return; return on assets or net assets; appreciation in and/or maintenance of the price of our Class A common stock or other publicly-traded securities; market share; gross profits; earnings or losses (including earnings or losses before taxes, before interest and taxes, or before interest, taxes, depreciation and/or amortization); adjusted earnings or losses (including adjusted earnings or losses before taxes, before interest and taxes, or before interest, taxes, depreciation and/or amortization); economic value-added models or equivalent metrics; comparisons with various stock market indices; reductions in costs; cash flow or cash flow per share (before or after dividends); return on capital (including return on total capital or return on invested capital); cash flow return on investment; improvement in or attainment of expense levels or working capital levels, including cash, inventory and accounts receivable; operating margin; gross margin; year-end cash; cash margin; debt reduction; stockholders equity; operating efficiencies; market share; customer satisfaction; customer growth; employee satisfaction; supply chain achievements (including establishing relationships with manufacturers or suppliers of component materials and manufacturers of our products); points of distribution; gross or net store openings; co-development, co-marketing, profit sharing, joint venture or other similar arrangements; financial ratios, including those measuring liquidity, activity, profitability or leverage; cost of capital or assets under management; financing and other capital raising transactions (including sales of our equity or debt securities; factoring transactions; sales or licenses of our assets, including its intellectual property, whether in a particular jurisdiction or territory or globally; or through partnering transactions); implementation, completion or attainment of measurable objectives with respect to research, development, manufacturing, commercialization, products or projects, production volume levels, acquisitions and divestitures; factoring transactions; and recruiting and maintaining personnel.

To the extent consistent with the requirements of Section 162(m), the compensation committee may establish that, in the case of any award intended to qualify as exempt performance-based compensation under Section 162(m), that one or more of the performance criteria applicable to such award be adjusted in an objectively determinable manner to reflect events occurring during the performance period of such award that affect the applicable performance criteria.

Payment .    A participant will be entitled to payment under an award only if all conditions to payment have been satisfied under the award. Following the close of the performance period, the compensation committee will determine (and, to the extent required by Section 162(m), certify) as to whether and to what extent the applicable performance criteria have been satisfied. The compensation committee will then determine the actual payment, if any, under each award.

Payment Limits .    The maximum payment to any participant under the Executive Incentive Plan for any fiscal year will in no event exceed $    .

Amendment and Termination .    The compensation committee may amend or terminate the Executive Incentive Plan at any time, provided that any amendment will be approved by the Company’s stockholders if required by Section 162(m) of the Code.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

The following are summaries of certain provisions of our related party agreements and are qualified in their entirety by reference to all of the provisions of such agreements. Because these descriptions are only summaries of the applicable agreements, they do not necessarily contain all of the information that you may find useful. We therefore urge you to review the agreements in their entirety. Copies of the forms of the agreements have been filed as exhibits to the registration statement of which this prospectus is a part, and are available electronically on the website of the SEC at www.sec.gov .

Related Party Agreements in Effect Prior to this Offering

ACON Acquisition

On October 30, 2015, we consummated the ACON Acquisition pursuant to a Securities Purchase and Contribution Agreement, or SPCA, by and among FAH, LLC, FHL, Funko, LLC, Fundamental, and the sellers named in the SPCA, including certain of our current executive officers and certain holders of 5% or more of our voting securities.

Pursuant to the SPCA, we agreed to make certain earnout payments to the sellers, which payments we refer to as the 2015 Earnout Payment and the 2016 Earnout Payment, upon the achievement of certain performance thresholds and events. Pursuant to the SPCA, ACON agreed, subject to certain exceptions, to make a capital contribution in the amount of $15.0 million in respect of the 2015 Earnout Payment and, under certain circumstances, had the right to make an additional capital contribution in the amount of up to $5.0 million, in each case, in exchange for Class A units of FAH, LLC. ACON also had the right, subject to certain exceptions, to make an additional capital contribution of up to $5.0 million in respect of the 2016 Earnout Payment in exchange for Class A Units of FAH, LLC, which contribution is referred to as the 2016 Earnout Contribution.

The 2015 Earnout Payment was equal to $40.0 million and was paid to the sellers in June 2016. In connection therewith, $21.2 million was paid to Fundamental, $6.2 million was paid to Mr. Brian Mariotti, our Chief Executive Officer, $0.3 million was paid to Mr. Russell Nickel, our Chief Financial Officer, $0.5 million was paid to Mr. Andrew Perlmutter, our President, and $3.1 million was paid to The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/14, which holds more than 5.0% of our voting securities. In connection with the 2015 Earnout Payment, ACON made a capital contribution of $15.0 million and received 15,000 Class A Units of FAH, LLC.

The 2016 Earnout Payment was equal to $25.0 million and was paid to the sellers in June 2017. In connection therewith, $13.2 million was paid to Fundamental, $3.9 million was paid to Mr. Mariotti, $156,750 was paid to Mr. Nickel and $1.9 million was paid to The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/14. In connection with the 2016 Earnout Payment, ACON made a capital contribution of $3.9 million in exchange for 3,841 Class A Units of FAH, LLC, and assigned its right to contribute the remaining $1.2 million of the 2016 Earnout Contribution to certain members of FAH, LLC, including Mr. Nickel (who contributed approximately $140,012 in exchange for approximately 140 Class A Units), Mr. Perlmutter (who contributed approximately $151,977 in exchange for approximately 152 Class A Units), Mr. Daw, (who contributed approximately $120,999 in exchange for approximately 121 Class A Units), and The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/14 (which contributed approximately $403,827 in exchange for approximately 404 Class A Units).

The remainder of the 2016 Earnout Payment was funded with the proceeds of promissory notes in the aggregate principal amount of $20.0 million, which we refer to as the Subordinated Promissory Notes. The Subordinated Promissory Notes were issued to certain members of FAH, LLC, including

 

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ACON (which holds a Subordinated Promissory Note with a principal amount of approximately $17.3 million), Mr. Nickel (who holds Subordinated Promissory Notes having an aggregate principal amount of approximately $120,000), Mr. Perlmutter (who holds Subordinated Promissory Notes having an aggregate principal amount of approximately $250,000) and The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/14 (which holds Subordinated Promissory Notes having an aggregate principal amount of approximately $2.0 million). Interest on the Subordinated Promissory Notes accrues at a rate equal to 11.0% per year for the first 90 days after their effective date, increasing to 13.0% per year 91 days after such effective date and 15.0% per year 181 days after such effective date. Accrued interest on the Subordinated Promissory Notes is due and payable annually on each anniversary of the effective date, beginning on June 26, 2018. The unpaid principal balance of the Subordinated Promissory Notes, together with all accrued and unpaid interest, is due and payable on the earlier of (1) 180 days after the payment in full of the obligations under the Senior Secured Credit Facilities, and (2) the consummation of this offering. As of June 30, 2017, the outstanding principal amount of the Subordinated Promissory Notes was $20.0 million. No principal or interest payments were made on the Subordinated Promissory Notes during the six months ended June 30, 2017.

Management Services Agreement

In October 2015, in connection with the ACON Acquisition, ACON Equity Management, L.L.C., or ACON Equity Management, an affiliate of ACON, and Funko, LLC entered into a management services agreement, pursuant to which ACON Equity Management agreed to provide certain financial, operational and other consulting and advisory services to Funko, LLC. Pursuant to the management services agreement, Funko, LLC agreed to pay ACON Equity Management a monitoring fee equal to the greater of (1) $500,000 and (2) 2% of prior year EBITDA (as defined in our Senior Secured Credit Facilities), but in no event shall the monitoring fee exceed for any calendar year $2.0 million. Funko, LLC also agreed to pay ACON Equity Management a one-time advisory fee of $2.0 million in connection with the ACON Acquisition. In addition, Funko, LLC agreed to reimburse ACON Equity Management for all reasonable out-of-pocket costs and expenses incurred in connection with ACON Equity Management’s services under the management services agreement. Funko, LLC also agreed to indemnify ACON Equity Management and its affiliates from and against all loss, liability, suits, claims, costs, damages and expenses, including attorneys’ fees and expenses and including the cost of enforcing the indemnification provisions, in each case, relating to or arising out of the services contemplated in the management services agreement or arising from or in connection with the performance of any such services under the management services agreement. The management services agreement has an initial term of ten years, and is automatically renewable thereafter on a year-to-year basis until ACON Equity Management gives notice of non-renewal, provided that the agreement will terminate automatically immediately prior to the consummation of any sale transaction, including our initial public offering. In the event of any such sale transaction, ACON Equity Management is entitled to receive an accelerated monitoring fee in cash in an amount equal to the then-current monitoring fee payable for the lesser of three years and the remainder of the agreement’s initial ten-year term.

Pursuant to the management services agreement, we incurred monitoring fees of $1.0 million in the six months ended June 30, 2017 and $1.5 million and $0.3 million in the year ended December 31, 2016 and the Successor 2015 Period, respectively. In addition, we recorded an expense for ACON Equity Management’s reimbursable expenses, totaling $0.2 million for the year ended December 31, 2016. For the six months ended June 30, 2017 and the Successor 2015 Period, there were no reimbursable expenses. Upon the consummation of this offering, ACON Equity Management is entitled to receive an accelerated monitoring fee of approximately $5.8 million, however ACON has agreed to waive its right to receive the accelerated monitoring fee in connection with such termination.

 

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In October 2015, certain officers and other employees of FAH, LLC entered into subscription agreements with FAH, LLC to purchase Class A Units of FAH, LLC, including Mr. Nickel (who subscribed for Class A Units having an aggregate purchase price of $150,000) and Mr. Perlmutter (who subscribed for Class A Units having an aggregate purchase price of $100,000). Each of Mr. Nickel and Mr. Perlmutter entered into a secured promissory note payable to Funko, LLC in an amount equal to the purchase price of such Class A Units. Amounts outstanding under the promissory notes were secured by all direct or indirect ownership interests of Mr. Nickel and Mr. Perlmutter (as applicable) in FAH, LLC (or any corporate successor of FAH, LLC), and were required to be repaid, in full or in part, with 100% of the after-tax portion of any cash distribution or dividend in respect of, or upon the transfer, sale or other disposition of, the Class A Units of FAH, LLC. Amounts outstanding under each promissory note accrued interest at a rate of 8.00%, compounded annually. The promissory notes were forgiven in full in October 2017. The largest aggregate principal amount outstanding under Mr. Nickel’s promissory note during the six months ended June 30, 2017 and the year ended December 31, 2016 was $129,013, and the largest aggregate principal amount outstanding under Mr. Perlmutter’s promissory note during the six months ended June 30, 2017 and the year ended December 31, 2016 was $86,008. Principal and interest payments on Mr. Nickel’s promissory note were $30,909 and $2,759, respectively, during the six months ended June 30, 2017, and $23,241 and $10,432, respectively, during the year ended December 31, 2016. Principal and interest payments on Mr. Perlmutter’s promissory note were $20,606 and $1,839, respectively, during the six months ended June 30, 2017, and $15,494 and $6,955, respectively, during the year ended December 31, 2016.

In May 2013, in connection with the acquisition by Fundamental Capital, LLC, or Fundamental Capital, of a controlling interest in Funko, LLC, which we refer to as the Fundamental Acquisition, Funko, LLC entered into a note purchase agreement pursuant to which we issued $15.0 million in aggregate principal amount of secured subordinated notes, referred to as the Subordinated Notes, to Gladstone Capital Corporation, or Gladstone Capital, and Gladstone Investment Corporation, or Gladstone Investment, who had a representative on the board of directors of FHL at the time of such transaction. The Subordinated Notes had a six-year maturity and were guaranteed by FHL. Interest on the Subordinated Notes was originally payable in kind and accrued at a rate of 1.50% per year. In November 2014, we amended the note purchase agreement to, among other things, issue an additional $4.0 million in aggregate principal amount of Subordinated Notes to Gladstone Capital and Gladstone Investment, and to replace the pay-in-kind interest rate with a leverage-based variable interest rate ranging from 9.25% to 11.25% per year. The Subordinated Notes were repaid in full in October 2015 in connection with the ACON Acquisition. The largest aggregate principal amount outstanding under the Subordinated Notes during the Predecessor 2015 Period and the year ended December 31, 2014 was $19.0 million. During the Predecessor 2015 Period and the year ended December 31, 2014, we paid $0.1 million in interest and $9.5 million in principal to Gladstone Capital, and $0.1 in interest and $9.5 million in principal to Gladstone Investment.

In May 2013, in connection with the Fundamental Acquisition, Funko, LLC also entered into promissory notes payable to each of Mr. Mariotti, Mr. Jon Kipp, and his brother, Mr. Corwin Kipp, in each case, in a principal amount equal to $0.8 million. The promissory notes had a maturity of six and a half years and accrued interest at a rate of 7.0% per year. The promissory notes were repaid in full in October 2015 in connection with the ACON Acquisition. The largest aggregate principal amount outstanding under these promissory notes during the Predecessor 2015 Period and the year ended December 31, 2014 was $0.8 million. During the Predecessor 2015 Period and the year ended December 31, 2014, we paid $9,828 in interest and $0.8 million in principal to Mr. Mariotti, $9,828 in interest and $0.8 million in principal to Mr. Jon Kipp and $9,828 in interest and $0.8 million in principal to Mr. Corwin Kipp.

 

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Professional Services Agreement

In May 2013, in connection with the Fundamental Acquisition, Funko, LLC entered into a professional services agreement with Fundamental Capital, pursuant to which Fundamental Capital agreed to provide certain financial, marketing and management consulting services to Funko, LLC. Pursuant to the professional services agreement, Funko, LLC agreed to pay Fundamental Capital a monthly management fee equal to (1) $20,833.33 per month for the first 12 calendar months following the date of the agreement, and (2) the greater of (a) $20,833.33 and (b) 1.5% of our gross revenue in the preceding calendar month for each month thereafter. Management fee payments were subject to a subordination agreement with the lender under certain of our then-outstanding indebtedness, which limited the management fees payable each year to $250,000 during the first year following the closing date of the Fundamental Acquisition, and 1.5% of the consolidated revenue of FHL and its subsidiaries for each year thereafter, subject to the satisfaction of certain other conditions. The professional services agreement also provided that Funko, LLC would reimburse Fundamental Capital for reasonable travel expenses and other out-of-pocket fees and expenses incurred in connection with the rendering of services thereunder. Funko, LLC also agreed to indemnify Fundamental Capital and its members, managers, partners, affiliates, officers, agents and employees against any and all loss, liability, suits, claims, costs, damages and expenses (including attorneys’ fees) arising directly or indirectly from the professional services agreement or any performance thereunder, subject to certain exceptions. The professional services agreement was terminated in October 2015 in connection with the ACON Acquisition.

We paid aggregate management fees of $3.3 million and $1.4 million to Fundamental Capital during the Predecessor 2015 Period and the year ended December 31, 2014, respectively, and reimbursed Fundamental Capital for expenses of less than $0.1 million for each period.

The Transactions

In connection with the Transactions, we will engage in certain transactions with certain of our directors, executive officers and other persons and entities which are or will become holders of 5% or more of our voting securities upon the consummation of the Transactions. These transactions are described in “Our Organizational Structure.”

We intend to use the net proceeds from this offering (including any net proceeds from any exercise of the underwriters’ option to purchase additional shares of Class A common stock) to purchase (1)        common units (or              common units if the underwriters exercise in full their option to purchase additional shares of Class A common stock) directly from FAH, LLC at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions, and (2)              common units directly from certain of the Continuing Equity Owners at a price per unit equal to the initial public offering price per share of Class A common stock in this offering less the underwriting discounts and commissions.

Tax Receivable Agreement

As described in “Our Organizational Structure,” we intend to use the net proceeds from this offering to purchase common units of FAH, LLC directly from FAH, LLC and certain of the Continuing Equity Owners. We expect to obtain an increase in our share of the tax basis of the assets of FAH, LLC in connection with the purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners. In addition, we may obtain an increase in our share of the tax basis of the assets of FAH, LLC in the future, when (as described below under “—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Common Unit Redemption Right”) a Continuing Equity Owner receives Class A common stock or cash, as applicable, from us in connection with an exercise of such Continuing Equity Owner’s right to have common units in FAH, LLC held by

 

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such Continuing Equity Owner redeemed (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) by FAH, LLC or, at our election, exchanged (which we intend to treat as our direct purchase of common units from such Continuing Equity Owner for U.S. federal income and other applicable tax purposes, regardless of whether such common units are surrendered by a Continuing Equity Owner to FAH, LLC for redemption or sold to us upon the exercise of our election to acquire such common units directly) (such basis increases, together with the basis increases in connection with the purchase of common units of FAH, LLC directly from certain of the Continuing Equity Owners in the Transactions, the “Basis Adjustments”). Any Basis Adjustment may have the effect of reducing the amounts that we would otherwise pay in the future to various tax authorities. The Basis Adjustments may also decrease gains (or increase losses) on future dispositions of certain assets to the extent tax basis is allocated to those assets.

In connection with the transactions described above, we will enter into a Tax Receivable Agreement with FAH, LLC and each of the Continuing Equity Owners that will provide for the payment by Funko, Inc. to the Continuing Equity Owners of 85% of the amount of certain tax benefits, if any, that Funko, Inc. actually realizes, or in some circumstances is deemed to realize in its tax reporting, as a result of the transactions described above, including the Basis Adjustments and certain other tax benefits attributable to payments made under the Tax Receivable Agreement. FAH, LLC intends to have in effect an election under Section 754 of the Code effective for each taxable year in which a redemption or exchange (including deemed exchange, and including for this purpose the purchase of common units of FAH, LLC directly from certain Continuing Equity Owners described above) of FAH, LLC common units for Class A common stock or cash occurs. These tax benefit payments are not conditioned upon one or more of the Continuing Equity Owners maintaining a continued ownership interest in FAH, LLC. If a Continuing Equity Owner transfers common units of FAH, LLC but does not assign to the transferee of such units its rights under the Tax Receivable Agreement, such Continuing Equity Owner generally will continue to be entitled to receive payments under the Tax Receivable Agreement arising in respect of a subsequent exchange of such common units. In general, the Continuing Equity Owners’ rights under the Tax Receivable Agreement may not be assigned, sold, pledged or otherwise alienated to any person, other than certain permitted transferees, without our prior written consent (which should not be unreasonably withheld, conditioned or delayed) and such person’s becoming a party to the Tax Receivable Agreement and agreeing to succeed to the applicable Continuing Equity Owner’s interest therein.

The actual Basis Adjustments, as well as any amounts paid to the Continuing Equity Owners under the Tax Receivable Agreement will vary depending on a number of factors, including:

 

    the timing of any future redemptions or exchanges —for instance, the increase in any tax deductions will vary depending on the fair value, which may fluctuate over time, of the depreciable or amortizable assets of FAH, LLC at the time of each redemption or exchange;

 

    the price of shares of our Class A common stock at the time of the purchases from the Continuing Equity Owners in connection with this offering and any applicable redemptions or exchanges —the Basis Adjustments, as well as any related increase in any tax deductions, are directly related to the price of shares of our Class A common stock at the time of such purchases or future redemptions or exchanges;

 

    the extent to which such redemptions or exchanges are taxable —if a redemption or exchange is not taxable for any reason, increased tax deductions will not be available; and

 

   

the amount and timing of our income —the Tax Receivable Agreement generally will require us to pay 85% of the tax benefits as and when those benefits are treated as realized under the terms of the Tax Receivable Agreement. If Funko, Inc. does not have taxable income, it generally will not be required (absent a change of control or other circumstances requiring an

 

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early termination payment and treating any outstanding common units in FAH, LLC held by members other than Funko, Inc. as having been exchanged for Class A common stock for purposes of determining such early termination payment) to make payments under the Tax Receivable Agreement for that taxable year because no tax benefits will have been actually realized. However, any tax benefits that do not result in realized tax benefits in a given taxable year will likely generate tax attributes that may be utilized to generate tax benefits in previous or future taxable years. The utilization of any such tax attributes will result in payments under the Tax Receivable Agreement.

For purposes of the Tax Receivable Agreement, cash savings in income tax will be computed by comparing our actual income tax liability to the amount of such taxes that we would have been required to pay had there been no Basis Adjustments, had the Tax Receivable Agreement not been entered into and had there been no tax benefits to us as a result of any payments made under the Tax Receivable Agreement; provided that, for purposes of determining cash savings with respect to state and local income taxes we will use an assumed tax rate. There is no maximum term for the Tax Receivable Agreement; however, the Tax Receivable Agreement may be terminated by us pursuant to an early termination procedure that requires us to pay the Continuing Equity Owners an agreed-upon amount equal to the estimated present value of the remaining payments to be made under the agreement (calculated with certain assumptions).

The payment obligations under the Tax Receivable Agreement are obligations of Funko, Inc. and not of FAH, LLC. Although the actual timing and amount of any payments that may be made under the Tax Receivable Agreement will vary, we expect that the payments that we may be required to make to the Continuing Equity Owners could be substantial. Any payments made by us to the Continuing Equity Owners under the Tax Receivable Agreement will generally reduce the amount of overall cash flow that might have otherwise been available to us or to FAH, LLC and, to the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, the unpaid amounts will be deferred and will accrue interest until paid by us; provided, however, that nonpayment for a specified period may constitute a material breach of a material obligation under the Tax Receivable Agreement and therefore may accelerate payments due under the Tax Receivable Agreement. We anticipate funding ordinary course payments under the Tax Receivable Agreement from cash flow from operations of our subsidiaries, available cash or available borrowings under our Senior Secured Credit Facilities or any future debt agreements. See “Unaudited Pro Forma Financial Information.” Decisions made by us in the course of running our business, such as with respect to mergers, asset sales, other forms of business combinations or other changes in control, may influence the timing and amount of payments that are received by a redeeming Continuing Equity Owner under the Tax Receivable Agreement. For example, the earlier disposition of assets following an exchange or acquisition transaction will generally accelerate payments under the Tax Receivable Agreement and increase the present value of such payments.

The Tax Receivable Agreement provides that if certain mergers, asset sales, other forms of business combination, or other changes of control were to occur, if we materially breach any of our material obligations under the Tax Receivable Agreement or if, at any time, we elect an early termination of the Tax Receivable Agreement, then the Tax Receivable Agreement will terminate and our obligations, or our successor’s obligations, under the Tax Receivable Agreement would accelerate and become due and payable, based on certain assumptions, including an assumption that we would have sufficient taxable income to fully utilize all potential future tax benefits that are subject to the Tax Receivable Agreement. In those circumstances, members of FAH, LLC would be deemed to exchange any remaining outstanding common units of FAH, LLC for Class A common stock and would generally be entitled to payments under the Tax Receivable Agreement resulting from such deemed exchanges. We may elect to completely terminate the Tax Receivable Agreement early only with the written

 

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approval of each of a majority of Funko, Inc.’s “independent directors” (within the meaning of Rule 10A-3 promulgated under the Exchange Act and the Nasdaq rules).

As a result of the foregoing, we could be required to make an immediate cash payment equal to the present value of the anticipated future tax benefits that are the subject of the Tax Receivable Agreement, which payment may be made significantly in advance of the actual realization, if any, of such future tax benefits. We also could be required to make cash payments to the Continuing Equity Owners that are greater than the specified percentage of the actual benefits we ultimately realize in respect of the tax benefits that are subject to the Tax Receivable Agreement. In these situations, our obligations under the Tax Receivable Agreement could have a substantial negative impact on our liquidity and could have the effect of delaying, deferring or preventing certain mergers, asset sales, other forms of business combination, or other changes of control. There can be no assurance that we will be able to finance our obligations under the Tax Receivable Agreement.

Payments under the Tax Receivable Agreement will be based on the tax reporting positions that we determine. We will not be reimbursed for any cash payments previously made to the Continuing Equity Owners pursuant to the Tax Receivable Agreement if any tax benefits initially claimed by us are subsequently challenged by a taxing authority and ultimately disallowed. Instead, any excess cash payments made by us to a Continuing Equity Owner will be netted against any future cash payments that we might otherwise be required to make under the terms of the Tax Receivable Agreement. However, a challenge to any tax benefits initially claimed by us may not arise for a number of years following the initial time of such payment or, even if challenged early, such excess cash payment may be greater than the amount of future cash payments that we might otherwise be required to make under the terms of the Tax Receivable Agreement and, as a result, there might not be future cash payments from which to net against. The applicable U.S. federal income tax rules are complex and factual in nature, and there can be no assurance that the IRS or a court will not disagree with our tax reporting positions. As a result, it is possible that we could make cash payments under the Tax Receivable Agreement that are substantially greater than our actual cash tax savings. Although we are not currently aware of any potential challenge, if we subsequently determine that any Basis Adjustments or other tax benefits may be subjected to a reasonable challenge by a taxing authority, we may withhold payments to the Continuing Equity Owners under the Tax Receivable Agreement related to such Basis Adjustments or other tax benefits in an interest-bearing escrow account until such a challenge is no longer possible.

If we receive a formal notice or assessment from a taxing authority with respect to any cash savings covered by the Tax Receivable Agreement, we will place certain subsequent tax benefit payments that would otherwise be made to the Continuing Equity Owners into an interest-bearing escrow account until there is a final determination. We will have full responsibility for, and sole discretion over, all Funko, Inc. tax matters, including the filing and amendment of all tax returns and claims for refund and defense of all tax contests, subject to certain participation and approval rights held by the Continuing Equity Owners.

Under the Tax Receivable Agreement, we are required to provide the Continuing Equity Owners with a schedule showing the calculation of payments that are due under the Tax Receivable Agreement with respect to each taxable year with respect to which a payment obligation arises within 90 days after filing our U.S. federal income tax return for such taxable year. This calculation will be based upon the advice of our tax advisors. Payments under the Tax Receivable Agreement will generally be made to the Continuing Equity Owners within three business days after this schedule becomes final pursuant to the procedures set forth in the Tax Receivable Agreement, although interest on such payments will begin to accrue at a rate of LIBOR plus 100 basis points from the due date (without extensions) of such tax return. Any late payments that may be made under the Tax Receivable Agreement will continue to accrue interest at a rate equal to the sum of the highest rate

 

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applicable at the time under the Senior Secured Credit Facilities (or any replacement thereof), plus 200 basis points (or, if there are no Senior Secured Credit Facilities at such time, LIBOR plus 725 basis points), until such payments are made, generally including any late payments that we may subsequently make because we did not have enough available cash to satisfy our payment obligations at the time at which they originally arose.

FAH LLC Agreement

Agreement in Effect Before Consummation of this Offering

FAH, LLC and the Original Equity Owners are parties to the Amended and Restated Limited Liability Company Agreement of FAH, LLC, dated as of October 30, 2015, and as amended by Amendment No. 1 to the Amended and Restated Limited Liability Company Agreement of FAH, LLC, dated as of January 10, 2017, and Amendment No. 2 to the Amended and Restated Limited Liability Company Agreement of FAH, LLC, dated as of October 3, 2017, which governs the business operations of FAH, LLC and defines the relative rights and privileges associated with the existing units of FAH, LLC. We refer to this agreement as the Existing LLC Agreement. Under the Existing LLC Agreement, the board of directors of FAH, LLC has the sole and exclusive right and authority to manage and control the business and affairs of FAH, LLC, and the day-to-day business operations of FAH, LLC are overseen and implemented by officers of FAH, LLC. Each Original Equity Owner’s rights under the Existing LLC Agreement continue until the effective time of the new FAH, LLC operating agreement to be adopted in connection with this offering, as described below, at which time the Continuing Equity Owners will continue as members that hold common units in FAH, LLC with the respective rights thereunder.

Agreement in Effect Upon Consummation of this Offering

In connection with the consummation of this offering, we and the Continuing Equity Owners will enter into FAH, LLC’s Second Amended and Restated Limited Liability Company Agreement, which we refer to as the FAH LLC Agreement.

Appointment as Manager.     Under the FAH LLC Agreement, we will become a member and the sole manager of FAH, LLC. As the sole manager, we will be able to control all of the day-to-day business affairs and decision-making of FAH, LLC without the approval of any other member. As such, we, through our officers and directors, will be responsible for all operational and administrative decisions of FAH, LLC and the day-to-day management of FAH, LLC’s business. Pursuant to the terms of the FAH LLC Agreement, we cannot, under any circumstances, be removed or replaced as the sole manager of FAH, LLC except by our resignation, which may be given at any time by written notice to the members.

Appointment as Tax Matters Partner .    We will be the “Tax Matters Partner” with respect to FAH, LLC for any tax year beginning on or before December 31, 2017, and will be the “Partnership Representative” for any tax year beginning on or after January 1, 2017. As such, we will represent FAH, LLC in connection with all examinations of its affairs by tax authorities.

Compensation, Fees and Expenses.     We will not be entitled to compensation for our services as manager. We will be entitled to reimbursement by FAH, LLC for reasonable fees and expenses incurred on behalf of FAH, LLC, including all expenses associated with this offering, any subsequent offering of our Class A common stock, being a public company and maintaining our corporate existence.

Distributions.     The FAH LLC Agreement will require “tax distributions” to be made by FAH, LLC to its members, as that term is used in the agreement, except to the extent such distributions would

 

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render FAH, LLC insolvent or are otherwise prohibited by law or our Senior Secured Credit Facilities or any of our future debt agreements. Tax distributions will be made on a quarterly basis, to each member of FAH, LLC, including us, based on such member’s allocable share of the taxable income of FAH, LLC and an assumed tax rate that will be determined by us, as described below. For this purpose, Funko, Inc.’s allocable share of FAH, LLC’s taxable income shall be net of its share of taxable losses of FAH, LLC and shall be determined without regard to any Basis Adjustments (as described above under “—Tax Receivable Agreement”). The assumed tax rate for purposes of determining tax distributions from FAH, LLC to its members will be the highest combined federal, state, and local tax rate that may potentially apply to any one of FAH, LLC’s members, regardless of the actual final tax liability of any such member. The FAH LLC Agreement will also allow for cash distributions to be made by FAH, LLC (subject to our sole discretion as the sole manager of FAH, LLC) to its members on a pro rata basis out of “distributable cash,” as that term is defined in the agreement. We expect FAH, LLC may make distributions out of distributable cash periodically and necessary to enable us to cover our operating expenses and other obligations, including our tax liability and obligations under the Tax Receivable Agreement, except to the extent such distributions would render FAH, LLC insolvent or are otherwise prohibited by law or our Senior Secured Credit Facility or any of our future debt agreements.

Transfer Restrictions.     The FAH LLC Agreement generally does not permit transfers of common units by members, except for transfers to permitted transferees, transfers pursuant to the participation right described below and transfers approved in writing by us, as manager, and other limited exceptions. In the event of a permitted transfer under the FAH LLC Agreement, such member will be required to simultaneously transfer shares of Class B common stock to such transferee equal to the number of common units that were transferred to such transferee in such permitted transfer.

The FAH LLC Agreement provides that, in the event that a tender offer, share exchange offer, issuer bid, take-over bid, recapitalization or similar transaction with respect to our Class A common stock, each of which we refer to as a Pubco Offer, is approved by our board of directors or otherwise effected or to be effected with the consent or approval of our board of directors, each holder of common units of FAH, LLC shall be permitted to participate in such Pubco Offer by delivering a redemption notice, which shall be effective immediately prior to, and contingent upon, the consummation of such Pubco Offer. If a Pubco Offer is proposed by Funko, Inc., then Funko, Inc. is required to use its reasonable best efforts expeditiously and in good faith to take all such actions and do all such things as are necessary or desirable to enable and permit the holders of such common units to participate in such Pubco Offer to the same extent as or on an economically equivalent basis with the holders of shares of Class A common stock, provided that in no event shall any holder of common units of FAH, LLC be entitled to receive aggregate consideration for each common unit that is greater than the consideration payable in respect of each share of Class A common stock pursuant to the Pubco Offer.

Except for certain exceptions, any transferee of common units must assume, by operation of law or executing a joinder to the FAH LLC Agreement, all of the obligations of a transferring member with respect to the transferred units, and such transferee shall be bound by any limitations and obligations under the FAH LLC Agreement even if the transferee is not admitted as a member of FAH, LLC. A member shall remain as a member with all rights and obligations until the transferee is accepted as substitute member in accordance with the FAH LLC Agreement.

Recapitalization.     The FAH LLC Agreement will recapitalize the units currently held by the existing members of FAH, LLC into a new single class of common units of FAH, LLC. The FAH LLC Agreement will also reflect a split of common units such that one common unit can be acquired with the net proceeds received in the initial offering from the sale of one share of our Class A common stock, after the deduction of underwriting discounts and commissions. Each common unit generally will entitle the holder to a pro rata share of the net profits and net losses and distributions of FAH, LLC.

 

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Maintenance of One-to-one Ratio between Shares of Class  A Common Stock and Common Units Owned by the Company and One-to-one Ratio between Shares of Class  B Common Stock and Common Units Owned by the Continuing Equity Owners .     The FAH LLC Agreement requires FAH, LLC to take all actions with respect to its common units, including issuances, reclassifications, distributions, divisions or recapitalizations, such that (1) we at all times maintain a ratio of one common unit owned by us, directly or indirectly, for each share of Class A common stock issued by us, and (2) FAH, LLC at all times maintain (a) a one-to-one ratio between the number of shares of Class A common stock issued by us and the number of common units owned by us and (b) a one-to-one ratio between the number of shares of Class B common stock owned by the Continuing Equity Owners and the number of common units owned by the Continuing Equity Owners. This ratio requirement disregards (1) shares of our Class A common stock under unvested options issued by us, (2) treasury stock and (3) preferred stock or other debt or equity securities (including warrants, options or rights) issued by us that are convertible into or exercisable or exchangeable for shares of Class A common stock, except to the extent we have contributed the net proceeds from such other securities, including any exercise or purchase price payable upon conversion, exercise or exchange thereof, to the equity capital of FAH, LLC. In addition, the Class A common stock ratio requirement disregards all common units at any time held by any other person, including the Continuing Equity Owners and the holders of options over common units. If we issue, transfer or deliver from treasury stock or repurchase shares of Class A common stock in a transaction not contemplated by the FAH LLC Agreement, we as manager have the authority to take all actions such that, after giving effect to all such issuances, transfers, deliveries or repurchases, the number of outstanding common units we own equals, on a one-for-one basis, the number of outstanding shares of Class A common stock. If we issue, transfer or deliver from treasury stock or repurchase or redeem any of our preferred stock in a transaction not contemplated by the FAH LLC Agreement, we as manager have the authority to take all actions such that, after giving effect to all such issuances, transfers, deliveries repurchases or redemptions, we hold (in the case of any issuance, transfer or delivery) or cease to hold (in the case of any repurchase or redemption) equity interests in FAH, LLC which (in our good faith determination) are in the aggregate substantially equivalent to our preferred stock so issued, transferred, delivered, repurchased or redeemed. FAH, LLC is prohibited from undertaking any subdivision (by any split of units, distribution of units, reclassification, recapitalization or similar event) or combination (by reverse split of units, reclassification, recapitalization or similar event) of the common units that is not accompanied by an identical subdivision or combination of (1) our Class A common stock to maintain at all times a one-to-one ratio between the number of common units owned by us and the number of outstanding shares of our Class A common stock, or (2) our Class B common stock to maintain at all times a one-to-one ratio between the number of common units owned by the Continuing Equity Owners and the number of outstanding shares of our Class B common stock, as applicable, in each case, subject to exceptions.

Issuance of Common Units upon Exercise of Options or Issuance of Other Equity Compensation.     Upon the exercise of options issued by us (as opposed to options issued by FAH, LLC), or the issuance of other types of equity compensation by us (such as the issuance of restricted or non-restricted stock, payment of bonuses in stock or settlement of stock appreciation rights in stock), we will have the right to acquire from FAH, LLC a number of common units equal to the number of our shares of Class A common stock being issued in connection with the exercise of such options or issuance of other types of equity compensation. When we issue shares of Class A common stock in settlement of stock options granted to persons that are not officers or employees of FAH, LLC or its subsidiaries, we will make, or be deemed to make, a capital contribution in FAH, LLC equal to the aggregate value of such shares of Class A common stock and FAH, LLC will issue to us a number of common units equal to the number of shares we issued. When we issue shares of Class A common stock in settlement of stock options granted to persons that are officers or employees of FAH, LLC or its subsidiaries, then we will be deemed to have sold directly to the person exercising such award a portion of the value of each share of Class A common stock equal to the exercise price per share, and

 

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we will be deemed to have sold directly to FAH, LLC (or the applicable subsidiary of FAH, LLC) the difference between the exercise price and market price per share for each such share of Class A common stock. In cases where we grant other types of equity compensation to employees of FAH, LLC or its subsidiaries, on each applicable vesting date we will be deemed to have sold to FAH, LLC (or such subsidiary) the number of vested shares at a price equal to the market price per share, FAH, LLC (or such subsidiary) will deliver the shares to the applicable person, and we will be deemed to have made a capital contribution in FAH, LLC equal to the purchase price for such shares in exchange for an equal number of common units of FAH, LLC.

Dissolution.     The FAH LLC Agreement will provide that the consent of Funko, Inc. as the managing member of FAH, LLC and members holding a majority of the voting units will be required to voluntarily dissolve FAH, LLC. In addition to a voluntary dissolution, FAH, LLC will be dissolved upon the entry of a decree of judicial dissolution or other circumstances in accordance with Delaware law. Upon a dissolution event, the proceeds of a liquidation will be distributed in the following order: (1) first, to pay the expenses of winding up FAH, LLC; (2) second, to pay debts and liabilities owed to creditors of FAH, LLC, other than members; and (3) third, to the members pro-rata in accordance with their respective percentage ownership interests in FAH, LLC (as determined based on the number of common units held by a member relative to the aggregate number of all outstanding common units).

Confidentiality.     We, as manager, and each member agree to maintain the confidentiality of FAH, LLC’s confidential information. This obligation excludes information independently obtained or developed by the members, information that is in the public domain or otherwise disclosed to a member, in either such case not in violation of a confidentiality obligation of the FAH LLC Agreement or approved for release by written authorization of the Chief Executive Officer, the Chief Financial Officer or the General Counsel of either Funko, Inc. or FAH, LLC.

Indemnification.     The FAH LLC Agreement will provide for indemnification of the manager, members and officers of FAH, LLC and their respective subsidiaries or affiliates.

Common Unit Redemption Right.     The FAH LLC Agreement will provide a redemption right to the Continuing Equity Owners which will entitle them to have their common units redeemed (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) for, at our option, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. In connection with the exercise of the redemption or exchange of common units (1) the Continuing Equity Owners will be required to surrender a number of shares of our Class B common stock registered in the name of such redeeming or exchanging Continuing Equity Owner, which we will cancel for no consideration on a one-for-one basis with the number of common units so redeemed or exchanged and (2) all redeeming members will surrender common units to FAH, LLC for cancellation.

Each Continuing Equity Owner’s redemption rights will be subject to certain customary limitations, including the expiration of any contractual lock-up period relating to the shares of our Class A common stock that may be applicable to such Continuing Equity Owner and the absence of any liens or encumbrances on such common units redeemed. Additionally, in the case we elect a cash settlement, such Continuing Equity Owner may rescind its redemption request within a specified period of time. Moreover, in the case of a settlement in Class A common stock, such redemption may be conditioned on the closing of an underwritten distribution of the shares of Class A Common Stock that may be

 

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issued in connection with such proposed redemption. In the case of a settlement in Class A common stock, such Continuing Equity Owner may also revoke or delay its redemption request if the following conditions exist: (1) any registration statement pursuant to which the resale of the Class A common stock to be registered for such Continuing Equity Owner at or immediately following the consummation of the redemption shall have ceased to be effective pursuant to any action or inaction by the SEC or no such resale registration statement has yet become effective; (2) we failed to cause any related prospectus to be supplemented by any required prospectus supplement necessary to effect such redemption; (3) we exercised our right to defer, delay or suspend the filing or effectiveness of a registration statement and such deferral, delay or suspension shall affect the ability of such Continuing Equity Owner to have its Class A common stock registered at or immediately following the consummation of the redemption; (4) such Continuing Equity Owner is in possession of any material non-public information concerning us, the receipt of which results in such Continuing Equity Owner being prohibited or restricted from selling Class A common stock at or immediately following the redemption without disclosure of such information (and we do not permit disclosure); (5) any stop order relating to the registration statement pursuant to which the Class A common stock was to be registered by such Continuing Equity Owner at or immediately following the redemption shall have been issued by the SEC; (6) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which the Class A common stock is then traded; (7) there shall be in effect an injunction, a restraining order or a decree of any nature of any governmental entity that restrains or prohibits the redemption; (8) we shall have failed to comply in all material respects with our obligations under the Registration Rights Agreement, and such failure shall have affected the ability of such Continuing Equity Owner to consummate the resale of the Class A common stock to be received upon such redemption pursuant to an effective registration statement; or (9) the redemption date would occur three business days or less prior to, or during, a black-out period.

In addition,         common units received by certain of the Continuing Equity Owners in exchange for HR Units in connection with the Transactions will be subject to certain further limitations on their redemption rights. Specifically, the Continuing Equity Owners who hold the common units that were converted from HR Units may not transfer or exercise their redemption rights until the earlier of (x) the date on which ACON has received aggregate distributions, dividends or other sale proceeds, since the date of ACON’s initial investment in FAH, LLC, equal to a certain return threshold and (y) the twelve month anniversary of the date on which ACON ceases to hold any common units or our Class A common stock or Class B common stock, which we refer to as the ACON Exit. Furthermore, if upon an ACON Exit, ACON has not received aggregate distributions, dividends or other sale proceeds, since the date of ACON’s initial investment in us, equal to a certain return threshold, ACON shall have a call right to purchase a portion the common units held by the Continuing Equity Owners that were converted from HR Units in connection with the Transactions.

Moreover,         common units received in exchange for unvested profits interests in connection with the Transactions will remain subject to their existing time-based vesting requirements. As such, the Former Profits Interests Holders who hold these common units will not be able to exercise their redemption rights until the applicable vesting date.

The FAH LLC Agreement will require that in the case of a redemption by a Continuing Equity Owner we contribute cash or shares of our Class A common stock, as applicable, to FAH, LLC in exchange for an amount of newly-issued common units in FAH, LLC that will be issued to us equal to the number of common units redeemed from the Continuing Equity Owner. FAH, LLC will then distribute the cash or shares of our Class A common stock, as applicable, to such Continuing Equity Owner to complete the redemption. In the event of an election by a Continuing Equity Owner, we may, at our option, effect a direct exchange by Funko, Inc. of cash or our Class A common stock, as applicable, for such common units in lieu of such a redemption. Whether by redemption or exchange, we are obligated to ensure that at all times the number of common units that we own equals the

 

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number of our outstanding shares of Class A common stock (subject to certain exceptions for treasury shares and shares underlying certain convertible or exchangeable securities).

Amendments. In addition to certain other requirements, our consent, as manager, and the consent of a majority of the common units of FAH, LLC then outstanding and entitled to vote (excluding common units held directly or indirectly by us) will generally be required to amend or modify the FAH LLC Agreement; provided that, for so long as ACON and its permitted transferees own at least five percent of the common units of FAH, LLC, such majority will be required to include ACON and its permitted transferees.

Stockholders Agreement

Pursuant to the Stockholders Agreement, ACON will have the right to designate certain of our directors, or the ACON Directors, which will be three ACON Directors for as long as ACON directly or indirectly, beneficially owns, in the aggregate, 35% or more of our Class A common stock, two ACON Directors for so long as ACON, directly or indirectly, beneficially owns, in the aggregate, less than 35% but 25% at least or more of our Class A common stock and one ACON Director for as long as ACON, directly or indirectly, beneficially owns, in the aggregate, less than 25% but at least 15% or more of our Class A common stock (assuming in each such case that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one-for-one basis). In addition, Fundamental will also have the right to designate one of our directors, or the Fundamental Director, for as long as Fundamental, directly or indirectly, beneficially owns, in the aggregate, 15% or more of our Class A common stock (assuming that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one-for-one basis). Each of ACON, Fundamental and Brian Mariotti, our Chief Executive Officer, will also agree to vote, or cause to vote, all of their outstanding shares of our Class A common stock and Class B common stock at any annual or special meeting of stockholders in which directors are elected, so as to cause the election of the ACON Directors, the Fundamental Director and Mr. Mariotti for as long as he is our Chief Executive Officer. Additionally, pursuant to the Stockholders Agreement, we shall take all commercially reasonable actions to cause (1) the board of directors to be comprised of at least seven directors or such other number of directors as our board of directors may determine; (2) the individuals designated in accordance with the terms of the Stockholders Agreement to be included in the slate of nominees to be elected to the board of directors at the next annual or special meeting of our stockholders at which directors are to be elected and at each annual meeting of our stockholders thereafter at which a director’s term expires; (3) the individuals designated in accordance with the terms of the Stockholders Agreement to fill the applicable vacancies on the board of directors; and (4) an ACON Director to be the chairperson of the board of directors (as defined in the amended and restated bylaws). The Stockholders Agreement allows for the board of directors to reject the nomination, appointment or election of a particular director if such nomination, appointment or election would constitute a breach of the board of directors’ fiduciary duties to our stockholders or does not otherwise comply with any requirements of our amended and restated certificate of incorporation or our amended and restated bylaws or the charter for, or related guidelines of, the board of directors’ nominating and corporate governance committee. See “Management—Composition of our Board of Directors.”

 

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In addition, the Stockholders Agreement provides that for as long as the ACON Related Parties beneficially own, directly or indirectly, in the aggregate, 30% or more of all issued and outstanding shares of our Class A common stock (assuming that all outstanding common units in FAH, LLC are redeemed for newly issued shares of our Class A common stock on a one for one basis), we will not take, and will cause our subsidiaries not to take, certain actions (whether by merger, consolidation or otherwise) without the prior written approval of ACON and each of its affiliated funds that will hold common units of FAH, LLC or our Class A Common Stock after the consummation of this offering, including:

 

    entering into any transaction or series of related transactions in which any person or group (other than the ACON Related Parties and any group that includes the ACON Related Parties, Fundamental (or certain of its affiliates or permitted transferees) or Mr. Mariotti) acquires, directly or indirectly, in excess of 50% of the then outstanding shares of any class of our or any of our subsidiaries’ capital stock, or following which any such person or group has the direct or indirect power to elect a majority of the members of our board of directors or to replace Funko, Inc. as the sole manager of FAH, LLC (or to add another person as co-manager of FAH, LLC);

 

    the reorganization, recapitalization, voluntary bankruptcy, liquidation, dissolution or winding up of us or any of our subsidiaries;

 

    the sale, lease or exchange of all or substantially all of our and our subsidiaries’ property and assets;

 

    the resignation, replacement or removal of Funko, Inc. as the sole manager of FAH, LLC, or the appointment of any additional person as a manager of FAH, LLC;

 

    any acquisition or disposition of our or any of our subsidiaries’ assets for aggregate consideration in excess of $             in a single transaction or series of related transactions (other than transactions solely between or among us and our direct or indirect wholly owned subsidiaries);

 

    the creation of a new class or series of capital stock or other equity securities of us or any of our subsidiaries;

 

    the issuance of additional shares of Class A common stock, Class B common stock, preferred stock or other equity securities of us or any of our subsidiaries other than (i) under any stock option or other equity compensation plan approved by our board of directors or the compensation committee thereof, (ii) pursuant to the exercise or conversion of any options, warrants or other securities existing as of the date of the Stockholders Agreement and (iii) in connection with any redemption of common units of FAH, LLC pursuant to the FAH LLC Agreement;

 

    any amendment or modification of our or any of our subsidiaries’ organizational documents, other than the FAH LLC Agreement, which shall be subject to amendment or modification solely in accordance with the terms set forth therein; and

 

    any increase or decrease of the size of our board of directors.

The Stockholders Agreement will terminate upon the earlier to occur of (1) each of ACON and Fundamental no longer have any right to designate a director as set forth in the Stockholders Agreement, and (2) the unanimous written consent of the parties to the Stockholders Agreement.

 

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Registration Rights Agreement

We intend to enter into a Registration Rights Agreement with certain of the Original Equity Owners, including ACON, Fundamental, The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/14 each of our executive officers, in connection with this offering. The Registration Rights Agreement will provide ACON with certain “demand” registration rights whereby, at any time after 180 days following our initial public offering and the expiration of any related lock-up period, ACON can require us to register under the Securities Act the offer and sale of shares of Class A common stock issuable to them, at our election, upon redemption or exchange of their common units in FAH, LLC. The Registration Rights Agreement will also provide for customary “piggyback” registration rights for all parties to the agreement. The Registration Rights Agreement will provide that we will pay certain expenses of the registration rights holders in connection with the exercise of their registration rights, and that we will indemnify the registration rights holders against certain liabilities which may arise under the Securities Act or other federal or state securities laws.

Employment Agreements

We intend to enter into an employment agreement with certain of our named executive officers in connection with this offering. See “Executive Compensation—Executive Compensation Arrangements.”

Director and Officer Indemnification and Insurance

Prior to the consummation of this offering, we intend to enter into separate indemnification agreements with each of our directors and executive officers. We have also purchased directors’ and officers’ liability insurance. See “Description of Capital Stock—Limitations on Liability and Indemnification of Officers and Directors.”

Our Policy Regarding Related Party Transactions

Our board of directors recognizes the fact that transactions with related persons present a heightened risk of conflicts of interests, improper valuation or the perception thereof. Prior to the consummation of this offering, our board of directors will adopt a written policy on transactions with related persons that is in conformity with the requirements for issuers having publicly held common stock that is listed on the Nasdaq Global Select Market. Under the new policy:

 

    any related person transaction, and any material amendment or modification to a related person transaction, must be reviewed and approved or ratified by a committee of the board of directors composed solely of independent directors who are disinterested or by the disinterested members of the board of directors; and

 

    any employment relationship or transaction involving an executive officer and any related compensation must be approved by the compensation committee of the board of directors or recommended by the compensation committee to the board of directors for its approval.

In connection with the review and approval or ratification of a related person transaction:

 

    management must disclose to the committee or disinterested directors, as applicable, the name of the related person and the basis on which the person is a related person, the material terms of the related person transaction, including the approximate dollar value of the amount involved in the transaction, and all the material facts as to the related person’s direct or indirect interest in, or relationship to, the related person transaction;

 

    management must advise the committee or disinterested directors, as applicable, as to whether the related person transaction complies with the terms of our agreements governing our material outstanding indebtedness that limit or restrict our ability to enter into a related person transaction;

 

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    management must advise the committee or disinterested directors, as applicable, as to whether the related person transaction will be required to be disclosed in our applicable filings under the Securities Act or the Exchange Act, and related rules, and, to the extent required to be disclosed, management must ensure that the related person transaction is disclosed in accordance with the Securities Act and the Exchange Act and related rules; and

 

    management must advise the committee or disinterested directors, as applicable, as to whether the related person transaction constitutes a “personal loan” for purposes of Section 402 of the Sarbanes-Oxley Act.

In addition, the related person transaction policy provides that the committee or disinterested directors, as applicable, in connection with any approval or ratification of a related person transaction involving a non-employee director should consider whether such transaction would compromise the director’s status as an “independent,” “outside,” or “non-employee” director, as applicable, under the rules and regulations of the SEC, The Nasdaq Stock Market and the Code.

 

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PRINCIPAL AND SELLING STOCKHOLDERS

The following table sets forth information with respect to the beneficial ownership of our Class A common stock and Class B common stock (1) immediately following the consummation of the Transactions (excluding this offering), as described in “Our Organizational Structure” and (2) as adjusted to give effect to this offering, for:

 

    each person known by us to beneficially own more than 5% of our Class A common stock or our Class B common stock;

 

    the selling stockholders;

 

    each of our directors;

 

    each of our named executive officers; and

 

    all of our executive officers and directors as a group.

As described in “Our Organizational Structure” and “Certain Relationships and Related Party Transactions,” each common unit (other than common units held by us) is redeemable from time to time at each holder’s option (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.” In connection with this offering, we will issue to each Continuing Equity Owner for nominal consideration one share of Class B common stock for each common unit of FAH, LLC it owns. As a result, the number of shares of Class B common stock listed in the table below correlates to the number of common units of FAH, LLC each such Continuing Equity Owner will own immediately after this offering. Although the number of shares of Class A common stock being offered hereby to the public and the total number of FAH, LLC common units outstanding after the offering will remain fixed regardless of the initial public offering price in this offering, the shares of Class B common stock held by the beneficial owners set forth in the table below after the consummation of the Transactions will vary, depending on the initial public offering price in this offering. The table below assumes the shares of Class A common stock are offered at $          per share (the midpoint of the price range listed on the cover page of this prospectus). See “The Offering.”

The number of shares beneficially owned by each stockholder as described in this prospectus is determined under rules issued by the SEC. Under these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power. In computing the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares of common stock subject to options, or other rights, including the redemption right described above with respect to each common unit, held by such person that are currently exercisable or will become exercisable within 60 days of the date of this prospectus, are considered outstanding, although these shares are not considered outstanding for purposes of computing the percentage ownership of any other person. The percentage ownership of each individual or entity after giving effect to the Transactions and before this offering is computed on the basis of              shares of our Class A common stock outstanding and              shares of our Class B common stock outstanding. Unless otherwise indicated, the address of all listed stockholders is 2802 Wetmore Avenue, Everett, WA 98201.

 

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Each of the stockholders listed has sole voting and investment power with respect to the shares beneficially owned by the stockholder unless noted otherwise, subject to community property laws where applicable.

 

    Class A Common Stock Beneficially
Owned (1)
    Class B Common Stock Beneficially
Owned
    Combined Voting Power (2)  
    After Giving
Effect to

the
Transactions
and

Before this
Offering
    After Giving
Effect to the

Transactions
and After

this
Offering (No
Exercise

of Option)
    After Giving
Effect to

the
Transactions
and

After this
Offering

(With Full
Exercise

of Option)
    After Giving
Effect to the

Transactions
and

Before this
Offering
    After Giving
Effect to

the
Transactions
and

After this
Offering

(No
Exercise
of Option)
    After Giving
Effect to

the
Transactions
and

After this
Offering

(With Full
Exercise

of Option)
    After
Giving
Effect to
the
Transactions
and After
this
Offering
(No
Exercise
of Option)
    After
Giving
Effect to
the
Transactions
and After
this
Offering
(With Full
Exercise
of Option)
 

Name of Beneficial
Owner

  Number     %     Number     %     Number     %     Number     %     Number     %     Number     %     Number     %     Number     %  

5% Stockholders:

                               

ACON Funko Investors, L.L.C. (3)

                               

Entities affiliated with Fundamental Capital Partners, LLC (4)

                               

The John P. and Trishawn P. Kipp Children’s Trust uad 5/31/2014 (5)

                               

Named Executive Officers and Directors:

                               

Brian Mariotti (6)

                               

Russell Nickel (6)

                               

Tracy Daw (6)

                               

Ken Brotman

                               

Gino Dellomo

                               

Charles Denson (6)

                               

Diane Irvine (6)

                               

Adam Kriger (6)

                               

Richard McNally (6)

                               

All executive officers and directors as a group (10 individuals)

                               

 

* Represents beneficial ownership of less than 1%.
(1)   Each common unit (other than common units held by us and                  common units held by certain of the Former Profits Interests Holders that are initially subject to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions) is redeemable from time to time at each holder’s option for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.” In these tables, beneficial ownership of common units has been reflected as beneficial ownership of shares of our Class A common stock for which such common units may be exchanged. When a common unit is exchanged by a Continuing Equity Owner who holds shares of our Class B common stock, a corresponding share of Class B common stock will be cancelled.
(2)   Represents the percentage of voting power of our Class A common stock and Class B common stock voting as a single class. Each share of Class A common stock and each share of Class B common stock entitles the registered holder thereof to one vote per share on all matters presented to stockholders for a vote generally, including the election of directors. The Class A common stock and Class B common stock will vote as a single class on all matters except as required by law or the certificate.
(3)  

ACON Funko Manager, L.L.C. is the sole manager of, and exercises voting and investment power over shares held by, ACON Funko Investors, L.L.C. Voting and investment decisions at ACON Funko Manager, L.L.C. are made by a board of managers, the members of

 

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  which are Bernard Aronson, Kenneth Brotman, Jonathan Ginns, Daniel Jinich, Andre Bhatia and Aron Schwartz. The address of ACON Funko Investors, L.L.C. and ACON Funko Manager is 1133 Connecticut Avenue, NW, Suite 700, Washington, D.C. 20036.
(4)   Includes (a)            shares of Class A common stock held by Fundamental Capital, LLC and (b)            shares of Class A common stock held by Funko International, LLC. Fundamental Capital, LLC is the General Manager of Funko International, LLC. Fundamental Capital Partners, LLC is the Manager of Fundamental Capital, LLC. Richard McNally and Kevin Keenley are the sole members of and hold voting membership interests in Fundamental Capital Partners, LLC. Each of Mr. McNally and Mr. Keenley disclaim beneficial ownership of the Class A common stock held by Fundamental Capital, LLC and Funko International, LLC. The address of each of the foregoing is 4 Embarcadero Center, Suite 1400, San Francisco, California 94111. All shares of Class A common stock shown as beneficially owned by Fundamental Capital, LLC and Funko International, LLC represent shares of Class A common stock that may be acquired upon the exchange of common units of FAH, LLC for Class A common stock on a one-for-one basis.
(5)   Includes (a)              Class A common stock held by The Jon P. and Trishawn P. Kipp Children’s Trust uad 5/31/2014 (the “Trust”) and (b)              Class A common stock that may be deemed to be held by Mr. and Mrs. Kipp. Mrs. Kipp is the sole trustee of the Trust, and in such capacity may be deemed to beneficially own the Class A common stock held by the Trust. All shares of Class A common stock shown as beneficially owned by the Trust and Mr. and Mrs. Kipp represent shares of Class A common stock that may be acquired upon the exchange of common units of FAH, LLC for Class A common stock on a one-for-one basis.
(6) All shares of Class A common stock shown as beneficially owned by such individual represent shares of Class A common stock that may be acquired upon the exchange of common units of FAH, LLC for Class A common stock on a one-for-one basis.

 

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DESCRIPTION OF CAPITAL STOCK

General

At or prior to the consummation of this offering, we will file an amended and restated certificate of incorporation and we will adopt our amended and restated bylaws. Our amended and restated certificate of incorporation will authorize capital stock consisting of:

 

                shares of Class A common stock, par value $0.0001 per share;

 

                shares of Class B common stock, par value $0.0001 per share; and

 

                shares of preferred stock, par value $0.0001 per share.

We are selling                  shares of Class A common stock in this offering (                  shares if the underwriters exercise in full their option to purchase additional shares of our Class A common stock). All shares of our Class A common stock outstanding upon consummation of this offering will be fully paid and non-assessable. We are issuing                  shares of Class B common stock to the Continuing Equity Owners simultaneously with this offering for nominal consideration.

The following summary describes the material provisions of our capital stock. We urge you to read our amended and restated certificate of incorporation and our amended and restated bylaws, which are included as exhibits to the registration statement of which this prospectus forms a part.

Certain provisions of our amended and restated certificate of incorporation and our amended and restated bylaws summarized below may be deemed to have an anti-takeover effect and may delay or prevent a tender offer or takeover attempt that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares of common stock.

Common Stock

Class A Common Stock

Holders of shares of our Class A common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. The holders of our Class A common stock do not have cumulative voting rights in the election of directors.

Holders of shares of our Class A common stock are entitled to receive dividends when and if declared by our board of directors out of funds legally available therefor, subject to any statutory or contractual restrictions on the payment of dividends and to any restrictions on the payment of dividends imposed by the terms of any outstanding preferred stock.

Upon our dissolution or liquidation, after payment in full of all amounts required to be paid to creditors and to the holders of preferred stock having liquidation preferences, if any, the holders of shares of our Class A common stock will be entitled to receive pro rata our remaining assets available for distribution.

Holders of shares of our Class A common stock do not have preemptive, subscription, redemption or conversion rights. There will be no redemption or sinking fund provisions applicable to the Class A common stock.

 

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Class B Common Stock

Each share of our Class B common stock entitles its holders to one vote per share on all matters presented to our stockholders generally. The holders of shares of our Class B common stock do not have cumulative voting rights in the election of directors.

Shares of Class B common stock will be issued in the future only to the extent necessary to maintain a one-to-one ratio between the number of common units of FAH, LLC held by the Continuing Equity Owners and the number of shares of Class B common stock issued to the Continuing Equity Owners. Shares of Class B common stock are transferable only together with an equal number of common units of FAH, LLC. Only permitted transferees of common units held by the Continuing Equity Owners will be permitted transferees of Class B common stock. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.”

Holders of shares of our Class B common stock will vote together with holders of our Class A common stock as a single class on all matters presented to our stockholders for their vote or approval, except for certain amendments to our certificate described below or as otherwise required by applicable law or the certificate.

Holders of our Class B common stock do not have any right to receive dividends or to receive a distribution upon dissolution or liquidation. Additionally, holders of shares of our Class B common stock do not have preemptive, subscription, redemption or conversion rights. There will be no redemption or sinking fund provisions applicable to the Class B common stock. Any amendment of our certificate of incorporation that gives holders of our Class B common stock (1) any rights to receive dividends or any other kind of distribution, (2) any right to convert into or be exchanged for Class A common stock or (3) any other economic rights will require, in addition to stockholder approval, the affirmative vote of holders of our Class A common stock voting separately as a class.

Upon the consummation of this offering, the Continuing Equity Owners will own                  shares of our Class B common stock.

Preferred Stock

Upon the consummation of this offering and the effectiveness of our amended and restated certificate of incorporation that will become effective immediately prior to the consummation of this offering, the total of our authorized shares of preferred stock will be                  shares. Upon the consummation of this offering, we will have no shares of preferred stock outstanding.

Under the terms of our amended and restated certificate of incorporation that will become effective immediately prior to the consummation of this offering, our board of directors is authorized to direct us to issue shares of preferred stock in one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.

The purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of our outstanding voting stock. Additionally, the issuance of preferred stock may adversely affect the holders of our Class A common stock by restricting dividends on the Class A common stock, diluting the voting power

 

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of the Class A common stock or subordinating the liquidation rights of the Class A common stock. As a result of these or other factors, the issuance of preferred stock could have an adverse impact on the market price of our Class A common stock.

Registration Rights

We intend to enter into a Registration Rights Agreement with certain of the Original Equity Owners (including each of our executive officers) in connection with this offering pursuant to which such parties will have specified rights to require us to register all or a portion of their shares under the Securities Act. See “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

Forum Selection

Our amended and restated certificate of incorporation will provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for: (1) any derivative action or proceeding brought on our behalf; (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders; (3) any action asserting a claim against us, any director or our officers and employees arising pursuant to any provision of the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws, or as to which the DGCL confers exclusive jurisdiction on the Court of Chancery; or (4) any action asserting a claim against us, any director or our officers or employees that is governed by the internal affairs doctrine.

Dividends

Declaration and payment of any dividend will be subject to the discretion of our board of directors. The time and amount of dividends will be dependent upon our business prospects, results of operations, financial condition, cash requirements and availability, debt repayment obligations, capital expenditure needs, contractual restrictions, covenants in the agreements governing our current and future indebtedness, industry trends, the provisions of Delaware law affecting the payment of distributions to stockholders and any other factors our board of directors may consider relevant. We currently intend to retain all available funds and any future earnings to fund the development and growth of our business and to repay indebtedness, and therefore do not anticipate declaring or paying any cash dividends on our Class A common stock in the foreseeable future. See “Dividend Policy” and “Risk Factors—Risks Relating to this Offering and Ownership of our Class A Common Stock—We do not intend to pay dividends on our Class A common stock for the foreseeable future.”

Anti-Takeover Provisions

Our amended and restated certificate of incorporation and amended and restated bylaws, as they will be in effect immediately prior to the consummation of this offering, will contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to discourage acquisitions that some stockholders may favor.

Authorized but Unissued Shares

The authorized but unissued shares of our common stock and our preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the Nasdaq

 

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rules. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans and, as described under “Certain Relationships and Related Party Transactions—FAH LLC Agreement—Agreement in Effect Upon Consummation of this Offering—Common Unit Redemption Right,” funding of redemptions of common units. The existence of authorized but unissued and unreserved common stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

Classified Board of Directors

Our amended and restated certificate of incorporation will provide that our board of directors will be divided into three classes, with the classes as nearly equal in number as possible and each class serving three-year staggered terms. Pursuant to the terms of the Stockholders Agreement, directors designated by ACON or Fundamental may only be removed with or without cause by the request of the party entitled to designate such director. In all other cases and at any other time, directors may only be removed from our board of directors for cause by the affirmative vote of a majority of the shares entitled to vote. See “Management—Composition of our Board of Directors.” These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control of us or our management.

Stockholder Action by Written Consent

Our amended and restated certificate of incorporation provides that any action required or permitted to be taken by our stockholders at an annual meeting or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a written consent is signed by the holders of our outstanding shares of common stock representing not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all outstanding shares of common stock entitled to vote thereon were present and voted, provided that at such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, less than 35% of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, any action required or permitted to be taken by our stockholders at an annual meeting or special meeting of stockholders may not be taken by written consent in lieu of a meeting.

Special Meetings of Stockholders

Our amended and restated bylaws provide that only the chairperson of our board of directors or a majority of our board of directors may call special meetings of our stockholders, except that at such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, 35% or more of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, a majority in voting power of the outstanding shares of our capital stock may also call special meetings of our stockholders.

Advance Notice Requirements for Stockholder Proposals and Director Nominations

In addition, our amended and restated bylaws will establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election to our board of directors. In order for any matter to be “properly brought” before a meeting, a stockholder will have to comply with advance notice and duration of ownership requirements and provide us with certain information. Stockholders at an annual meeting

 

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may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board of directors or by a qualified stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying stockholder actions that are favored by the holders of a majority of our outstanding voting securities until the next stockholder meeting.

Amendment of Certificate of Incorporation or Bylaws

The Delaware General Corporation Law provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Upon consummation of this offering, our bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of a majority of the votes which all our stockholders would be eligible to cast in an election of directors. At such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, less than 35% of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, our bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of the holders of at least 66 2 / 3 % of the votes which all our stockholders would be entitled to cast in any annual election of directors. In addition, the affirmative vote of a majority of the votes which all our stockholders would be eligible to cast in an election of directors will be required to amend or repeal or to adopt any provisions inconsistent with any of the provisions of our amended and restated certificate of incorporation, and any amendment of our amended and restated certificate of incorporation that gives holders of our Class B common stock (1) any rights to receive dividends or any other kind of distribution, (2) any right to convert into or be exchanged for Class A common stock or (3) any other economic rights will require, in addition to stockholder approval, the affirmative vote of holders of our Class A common stock voting separately as a class. At such time as the ACON Related Parties, directly or indirectly, beneficially own in the aggregate, less than 35% of all shares of Class A common stock (including for this purpose all shares of Class A common stock issuable upon redemption of common units, assuming all such common units are redeemed for Class A common stock on a one-for-one basis) issued and outstanding, the affirmative vote of the holders of at least 66 2 / 3 % of the votes which all our stockholders would be entitled to cast in any election of directors will be required to amend or repeal or to adopt any provisions contained in our amended and restated certificate of incorporation described above.

Section 203 of the DGCL

We will opt out of Section 203 of the DGCL. However, our amended and restated certificate of incorporation will contain provisions that are similar to Section 203. Specifically, our amended and restated certificate of incorporation will provide that, subject to certain exceptions, we will not be able to engage in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person. However, in our case, ACON and Fundamental and any of their respective affiliates and any of their respective direct or indirect transferees receiving 15% or more of our outstanding voting stock will not be deemed to be interested stockholders regardless of the percentage of our outstanding voting stock owned by them, and accordingly will not be subject to such restrictions.

 

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Washington Business Corporation Act

The laws of Washington, where our principal executive offices are located, impose restrictions on certain transactions between certain foreign corporations and significant stockholders. In particular, the Washington Business Corporation Act, or the WBCA, prohibits a “target corporation,” with certain exceptions, from engaging in certain “significant business transactions” with a person or group of persons which beneficially owns 10% or more of the voting power of the target corporation, an “acquiring person,” for a period of five years after such acquisition, unless the transaction or acquisition of shares is approved by a majority of the members of the target corporation’s board of directors prior to the time of acquisition. Such prohibited transactions may include, among other things, any merger or consolidation with, disposition of assets to, or issuance or redemption of stock to or from, the acquiring person; any termination of 5% or more of the employees of the target corporation as a result of the acquiring person’s acquisition of 10% or more of the shares; and allowing the acquiring person to receive any disproportionate benefit as a stockholder.

After the five-year period, a significant business transaction may take place as long as it complies with certain fair price provisions of the statute or is approved at an annual or special meeting of stockholders. We will be considered a “target corporation” so long as our principal executive office is located in Washington and (1) a majority of our employees are residents of the state of Washington or we employ more than one thousand residents of the state of Washington, (2) a majority of our tangible assets, measured by market value, are located in the state of Washington or we have more than $50 million worth of tangible assets located in the state of Washington, and (3) any one of the following: (a) more than 10% of our stockholders of record are resident in the state of Washington; (b) more than 10% of our shares are owned of record by state residents; or (c) 1,000 or more of our stockholders of record are resident in the state. If we meet the definition of a target corporation, the WBCA may have the effect of delaying, deferring or preventing a change of control.

Limitations on Liability and Indemnification of Officers and Directors

Our amended and restated certificate of incorporation and amended and restated bylaws provide indemnification for our directors and officers to the fullest extent permitted by the Delaware General Corporation Law. Prior to the consummation of this offering, we intend to enter into indemnification agreements with each of our directors and executive officers that may, in some cases, be broader than the specific indemnification provisions contained under Delaware law. In addition, as permitted by Delaware law, our amended and restated certificate of incorporation includes provisions that eliminate the personal liability of our directors for monetary damages resulting from breaches of certain fiduciary duties as a director. The effect of this provision is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director for breach of fiduciary duties as a director.

These provisions may be held not to be enforceable for violations of the federal securities laws of the United States.

Corporate Opportunity Doctrine

Delaware law permits corporations to adopt provisions renouncing any interest or expectancy in certain opportunities that are presented to the corporation or its officers, directors or stockholders. Our amended and restated certificate of incorporation will, to the maximum extent permitted from time to time by Delaware law, renounce any interest or expectancy that we have in, or right to be offered an opportunity to participate in, specified business opportunities that are from time to time presented to certain of our officers, directors or stockholders or their respective affiliates, other than those officers, directors, stockholders or affiliates acting in their capacity as our employee, or director. Our amended

 

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and restated certificate of incorporation will provide that, to the fullest extent permitted by law, any director or stockholder who is not employed by us or our affiliates will not have any duty to refrain from (1) engaging in a corporate opportunity in the same or similar lines of business in which we or our affiliates now engage or propose to engage or (2) otherwise competing with us or our affiliates. In addition, to the fullest extent permitted by law, if any director or stockholder, other than a director or stockholder who is not employed by us or our affiliates acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself or himself or its or his affiliates or for us or our affiliates, such person will have no duty to communicate or offer such transaction or business opportunity to us or any of our affiliates and they may take any such opportunity for themselves or offer it to another person or entity, unless such opportunity was expressly offered to them solely in their capacity as a director, executive officer or employee of us or our affiliates. To the fullest extent permitted by Delaware law, no potential transaction or business opportunity may be deemed to be a corporate opportunity of the corporation or its subsidiaries unless (1) we or our subsidiaries would be permitted to undertake such transaction or opportunity in accordance with the amended and restated certificate of incorporation, (2) we or our subsidiaries, at such time have sufficient financial resources to undertake such transaction or opportunity, (3) we have an interest or expectancy in such transaction or opportunity and (4) such transaction or opportunity would be in the same or similar line of our or our subsidiaries’ business in which we or our subsidiaries are engaged or a line of business that is reasonably related to, or a reasonable extension of, such line of business. Our amended and restated certificate of incorporation will not renounce our interest in any business opportunity that is expressly offered to an employee director or employee in his or her capacity as a director or employee of Funko, Inc. To the fullest extent permitted by law, no business opportunity will be deemed to be a potential corporate opportunity for us unless we would be permitted to undertake the opportunity under our certificate, we have sufficient financial resources to undertake the opportunity and the opportunity would be in line with our business.

Dissenters’ Rights of Appraisal and Payment

Under the DGCL, with certain exceptions, our stockholders will have appraisal rights in connection with a merger or consolidation of Funko, Inc. Pursuant to the DGCL, stockholders who properly request and perfect appraisal rights in connection with such merger or consolidation will have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.

Stockholders’ Derivative Actions

Under the DGCL, any of our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of our shares at the time of the transaction to which the action relates or such stockholder’s stock thereafter devolved by operation of law.

Transfer Agent and Registrar

The transfer agent and registrar for our Class A common stock is                     .

Trading Symbol and Market

We have applied to list our Class A common stock on the Nasdaq Global Select Market under the symbol “FNKO.”

 

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DESCRIPTION OF CERTAIN INDEBTEDNESS

Senior Secured Credit Facilities

General

On October 30, 2015, in connection with the ACON Acquisition, FAH, LLC, FHL and Funko, LLC, which we refer to collectively as the Borrowers, entered into a credit agreement with PNC Bank, National Association, as administrative agent, Cerebus Business Finance, LLC, as collateral agent, and the other lenders party thereto, which provided for a $175.0 million term loan facility, which we refer to as the Term Loan A Facility, and a $50.0 million asset-based revolving credit facility (including a $3.0 million letter of credit sublimit), which we refer to as the Revolving Credit Facility, and, together with the Term Loan A Facility and the Term Loan B Facility (as defined below), the Senior Secured Credit Facilities. Proceeds from the Term Loan A Facility were used to finance a portion of the purchase price for the ACON Acquisition, refinance outstanding indebtedness, pay related fees and expenses and fund working capital and other general corporate purposes of the Borrowers.

On September 8, 2016, we entered into an amendment to the credit agreement to, among other things, increase borrowings under the Term Loan A Facility by $50.0 million, permit FAH, LLC to make distributions to its direct and indirect investors with proceeds from the additional borrowings, change the interest rate applicable to borrowings under the Revolving Credit Facility and make certain other changes to certain covenants and definitions. Proceeds from the additional Term Loan A Facility borrowings were used to fund a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management.

On October 13, 2016, we entered into a second amendment to the credit agreement to revise the definition of our fixed charge coverage ratio.

On January 17, 2017, we entered into a third amendment to the credit agreement to, among other things, provide for an additional $50.0 million term loan facility, which we refer to as the Term Loan B Facility (and, together with the Term Loan A Facility, the Term Loan Facilities), increase commitments under the Revolving Credit Facility to $80.0 million, permit FAH, LLC to make a distribution to its direct and indirect investors with proceeds from the Term Loan B Facility and make certain other changes to certain covenants and definitions. Proceeds from the Term Loan B Facility were used to fund a $49.0 million special cash distribution to the holders of Class A units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain of our executive officers and other employees. In connection with the third amendment, we issued warrants to the lenders to purchase 1,774 Class A Units and 94 common units of FAH, LLC.

On June 26, 2017, we entered into a fourth amendment to the credit agreement to, among other things, permit FAH, LLC to enter into the subordinated loan documents in connection with the Subordinated Promissory Notes and make certain changes to certain covenants and definitions. On June 28, 2017, we also entered into a fifth amendment to the credit agreement to, among other things, increase borrowings under the Term Loan A Facility by $20.0 million, increase commitments under the Revolving Credit Facility to $100.0 million and make certain changes to certain covenants and definitions. Proceeds from the additional Term Loan A Facility borrowings were used to fund a portion of the purchase price for the Loungefly Acquisition and to pay related fees and expenses.

 

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Interest Rates and Fees

Borrowings under the Term Loan A Facility accrue interest at a rate per year equal to, at our option (subject to the terms of the credit agreement), either (1) the Reference Rate plus a margin of 6.25%, or (2) the LIBOR Rate plus a margin of 7.25%. The Reference Rate is defined as the greatest of (a) a commercial lending rate publicly announced by the Reference Bank (as defined in the credit agreement), (b) the federal funds open rate plus 0.50% per year, and (c) the one-month LIBOR published in the Wall Street Journal, or the Daily LIBOR Rate, plus 1.00% per year, subject to a 3.00% floor. The LIBOR Rate is defined as the applicable London Interbank Offered Rate for U.S. dollar deposits, subject to a 1.00% floor, divided by 1.00 minus the maximum effective reserve percentage for Eurocurrency funding.

Borrowings under the Term Loan B Facility bear interest at a rate per year equal to, at our option (subject to the terms of the credit agreement), either (1) the Reference Rate plus a margin of 9.00% per year or (2) the LIBOR Rate Plus a margin of 10.00% per year.

Borrowings under the Revolving Credit Facility bear interest at the at a rate equal to the one-month LIBOR published in The Wall street Journal plus a margin of 2.50% per year. Under the terms of the Revolving Credit Facility, we can borrow up to an amount, or the Borrowing Base, equal lesser of (1) 70.0% of the book value of Eligible Inventory (as defined in the credit agreement) (or, if less, 85.0% of its orderly liquidation value), (2) the lesser of (a) 10.0% of the aggregate outstanding commitments under the Revolving Credit Facility, or the Maximum Revolving Loan Amount, and (b) 70.0% of the book value of Eligible In-Transit Inventory (as defined in the credit agreement) (or, if less, 85.0% of its orderly liquidation value), (3) 85.0% of the net amount of Eligible Domestic Accounts Receivable (as defined in the credit agreement), (4) the lesser of (a) 20.0% of the Maximum Revolving Loan Amount and (b) 85.0% of the net amount of Eligible Foreign Accounts Receivable (as defined in the credit agreement) plus (5) the lesser of (a) 30.0% of the Maximum Revolving Loan Amount and (b) 70.0% of the book value of Eligible Special Inventory (as defined in the credit agreement) (or, if less, 85.0% of its orderly liquidation value), up to $100.0 million. The book value of Eligible Inventory, Eligible In-Transit Inventory and Eligible Special Inventory is determined by the lower of cost or market value. The amount available for borrowing under the Revolving Credit Facility may also be reduced by certain reserve amounts that may be established by the administrative agent from time to time.

In addition to paying interest on the principal amounts outstanding under the Senior Secured Credit Facilities, we are required to pay an unused line fee to the lenders under the Revolving Credit Facility in respect of the unutilized commitments thereunder at a rate of 0.375% per year. We also pay customary letter of credit and agency fees.

Mandatory Prepayments

The credit agreement requires the Borrowers to prepay amounts outstanding under the Senior Secured Credit Facilities, subject to certain exceptions (and, with respect to clauses (1) and (3) below, certain limited reinvestment rights), with: (1) 100% of the net cash proceeds of non-ordinary course asset sales and other dispositions of assets, to the extent the aggregate amount of such net cash proceeds exceeds $500,000 in any fiscal year; (2) 100% of the net cash proceeds of any indebtedness (other than certain permitted indebtedness); and (3) 100% of any casualty insurance or condemnation proceeds, net of reasonable collection expenses, received in respect of any collateral, to the extent the aggregate amount of such proceeds exceed $500,000 in any fiscal year (except that such threshold shall not apply after the occurrence and during the continuation of an event of default).

In addition, following the end of each fiscal year, the Borrowers are required to prepay the outstanding principal amount of all loans under the Senior Secured Credit Facilities in an aggregate

 

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amount equal to 60% of excess cash flow for such fiscal year if the senior leverage ratio is greater than or equal to 2.75:1.00, which percentage is reduced to 35% if the senior leverage ratio is less than 2.75:1.00 but greater than or equal to 2.00:1.00, and to 0.0% if the senior leverage ratio is less than 2.00:1.00. After such time as we have voluntarily prepaid at least $10.0 million in term loans (excluding any excess cash flow prepayments), the excess cash flow prepayment percentages will be reduced to 50.0% (for a senior leverage ratio of greater than or equal to 2.75:1.00), 25.0% (for a senior leverage ratio of less than 2.75:1.00 but greater than or equal to 2.00:1.00), and 0.0% (for a senior leverage ratio of less than 2.00:1.00). In addition, after such time as we have voluntarily prepaid at least $10.0 million in term loans (excluding any excess cash flow prepayments), the amount of any required excess cash flow prepayment may be reduced by the aggregate principal amount of all additional voluntary term loan prepayments made during such fiscal year.

In general, the mandatory prepayments described above will be applied first to the Term Loan Facilities (ratably against the next four quarters of scheduled amortization, then ratably against their respective balances) and then to the Revolving Facility, except that the proceeds of any casualty insurance or non-ordinary course dispositions with respect to inventory will be applied first to the Revolving Facility. Any prepayments must be accompanied by accrued and unpaid interest on the principal amount being prepaid and customary “breakage” costs, if any, with respect to prepayments of LIBOR Rate borrowings. In addition, prepayments of outstanding borrowings under the Term Loan Facilities required to be made with the proceeds of asset sales or other dispositions, or with the proceeds of indebtedness (in each case, as described above) must be accompanied by any applicable prepayment premium, as described below under “—Voluntary Prepayment.”

In addition to the foregoing, the Borrowers will be required to prepay amounts outstanding under the Revolving Credit Facility (or provide cash collateral up to the amount of any outstanding letter of credit obligations) to the extent outstanding borrowings under the Revolving Credit Facility, together with any outstanding letter of credit obligations, exceed the Borrowing Base.

Additionally, after the occurrence and during the continuation of an event of default, or if the average availability under the Revolving Credit Facility during any consecutive 30-day period is not greater than 10.0% of the Maximum Revolving Loan Amount, all amounts received in certain controlled deposit accounts that the Loan Parties are required to maintain pursuant to the credit agreement will be swept into the administrative agent’s account and used to prepay amounts outstanding under the Revolving Credit Facility (or cash collateralize any outstanding letter of credit obligations). Such cash sweep will be discontinued in the event the average availability under the Revolving Credit Facility exceeds 10.0% of the Maximum Revolving Loan Amount for 60 consecutive days (provided the depository bank permits such discontinuation).

Voluntary Prepayment

We may voluntarily prepay outstanding borrowings under the Term Loan Facilities as long as after giving effect to such prepayment, we have availability under the Revolving Credit Facility as of such date, and average availability under the Revolving Credit Facility over the preceding 30-day period (assuming that such proposed payment and any borrowings under the Revolving Credit Facility used to fund such payment were made on the first day of such period), of at least $10.0 million. Any such prepayment must generally be accompanied by the applicable prepayment premium, if any, subject to certain exceptions (including prepayments of borrowings under the Term Loan B Facility with the proceeds of our initial public offering or certain private placements).

The applicable prepayment premium for prepayments of the Term Loan A Facility on or prior to October 30, 2017 is equal to 1.00% of the principal amount prepaid. No prepayment premium is due for prepayments made after October 30, 2017. The applicable prepayment premium for prepayments

 

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of the Term Loan B Facility is equal to (1) 2.00% of the principal amount prepaid, for prepayments made on or prior to January 17, 2018, (2) 1.00% of the principal amount prepaid, for prepayments made during the period after January 17, 2018 through and including January 17, 2019, and (3) zero, thereafter.

All voluntary prepayments must be accompanied by accrued and unpaid interest on the principal amount being prepaid and customary “breakage” costs, if any, with respect to prepayments of LIBOR Rate borrowings.

In addition, we may permanently reduce the unutilized portion of commitments under the Revolving Credit Facility, provided that we do not reduce the total amount of revolving commitments below $25.0 million (except in connection with a permanent reduction of such commitments to zero). Any reduction in revolving commitments must generally be accompanied by the applicable prepayment premium, which, on or prior to October 30, 2017, is equal to 1.00% of the amount by which such commitments are reduced. No premium is due for reductions made after October 30, 2017.

Amortization and Final Maturity

The Term Loan A Facility is payable in quarterly installments of $2.35 million per quarter. The Term Loan B Facility is payable in monthly installments of $1.0 million per month; provided that we may forego any installment payment due with respect to the Term Loan B Facility on or prior to December 31, 2017 by providing notice to the administrative agent and paying an installment waiver fee of $110,000 on or prior to the date such installment payment would have been due. The remaining unpaid balance on the Term Loan Facilities, together with all accrued and unpaid interest thereon, is due and payable on the earlier of October 30, 2021 and the date all commitments under the Revolving Credit Facility are terminated. Outstanding borrowings under the Revolving Credit Facility do not amortize and are due and payable on October 31, 2021.

Guarantees and Security

The Borrowers’ obligations under the Senior Secured Credit Facilities are required to be guaranteed by each of the Borrowers’ future direct and indirect subsidiaries, other than certain foreign and other excluded subsidiaries (any such subsidiary guarantors, together with the Borrowers, we refer to as the Loan Parties. All obligations under the Senior Secured Credit Facilities are, and any future guarantees of those obligations will be, secured by, among other things, and in each case subject to certain exceptions: (1) a first-priority pledge of all of the capital stock or other equity interests held by each Loan Party (which pledge, in the case of the voting capital stock of a controlled foreign corporation, may be limited to 65.0% of such capital stock), and (2) a first-priority pledge in substantially all of the other tangible and intangible assets of each Loan Party.

Covenants and Other Matters

The credit agreement governing the Senior Secured Credit Facilities contains a number of covenants that, among other things and subject to certain exceptions, restrict the ability of the Loan Parties to:

 

    incur additional indebtedness;

 

    incur certain liens;

 

    consolidate, merge or sell or otherwise dispose of their assets;

 

    alter the business conducted by them and their subsidiaries;

 

    make investments, loans, advances, guarantees and acquisitions;

 

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    enter into sale and leaseback transactions;

 

    pay dividends or make other distributions on equity interests, or redeem, repurchase or retire equity interests;

 

    enter into transactions with affiliates;

 

    enter into agreements restricting their subsidiaries’ ability to pay dividends;

 

    issue or sell equity interests or securities convertible into or exchangeable for equity interests;

 

    redeem, repurchase or refinance other indebtedness; and

 

    amend or modify their governing documents.

In addition, the credit agreement requires FAH, LLC and its subsidiaries to comply on a quarterly basis with a maximum senior leverage ratio and a minimum fixed charge coverage ratio (in each case, measured on a trailing four-quarter basis). For the quarter ended June 30, 2017, the maximum senior leverage ratio was 3.50:1.00, and the minimum fixed charge coverage ratio was 1.10:1.00. We were in compliance with each of these covenants as of June 30, 2017. The maximum senior leverage ratio will become more restrictive over time, decreasing to 3.08:1.00 for the quarter ending December 31, 2017, and 2.83:1.00 for the quarter ending March 31, 2018 and each following quarter.

The credit agreement also contains certain customary representations and warranties and affirmative covenants, and certain reporting obligations. In addition, the lenders under the Senior Secured Credit Facilities will be permitted to accelerate all outstanding borrowings and other obligations, terminate outstanding commitments and exercise other specified remedies upon the occurrence of certain events of default (subject to certain grace periods and exceptions), which include, among other things, payment defaults, breaches of representations and warranties, covenant defaults, certain cross-defaults and cross-accelerations to other indebtedness, certain events of bankruptcy and insolvency, certain judgments and changes of control. The credit agreement defines “change of control” to include, among other things, ACON and its affiliates ceasing to own and control, directly or indirectly, (1) prior to our initial public offering (or certain private placements), at least a majority of the aggregate outstanding voting and economic power of FAH, LLC, and (2) after such time, (a) at least 25.0% of the aggregate outstanding voting and economic power of FAH, LLC, and (b) a greater percentage of the voting power of FAH, LLC than any other person or group.

The foregoing summary describes the material provisions of the Senior Secured Credit Facilities, but may not contain all information that is important to you. We urge you to read the provisions of the agreements governing the Senior Secured Credit Facilities, which have been filed as exhibits to the registration statement of which this prospectus forms a part.

 

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SHARES ELIGIBLE FOR FUTURE SALE

Immediately prior to this offering, there was no public market for our Class A common stock. Future sales of substantial amounts of Class A common stock in the public market (including shares of Class A common stock issuable upon redemption or exchange of common units of our Continuing Equity Owners), or the perception that such sales may occur, could adversely affect the market price of our Class A common stock. Although we have applied to have our Class A common stock listed on the Nasdaq Global Select Market, we cannot assure you that there will be an active public market for our Class A common stock.

Upon the closing of this offering, we will have outstanding an aggregate of                  shares of Class A common stock, assuming the issuance of                  shares of Class A common stock offered by us in this offering and the issuance of                  shares of Class A common stock to the Former Equity Owners in the Transactions, including                  shares of Class A common stock to be sold by the Former Equity Owners in this offering as selling stockholders. Of these shares, all shares sold in this offering will be freely tradable without restriction or further registration under the Securities Act, except for any shares purchased by our “affiliates,” as that term is defined in Rule 144 under the Securities Act, whose sales would be subject to the Rule 144 resale restrictions described below, other than the holding period requirement.

The remaining                  shares of Class A common stock will be “restricted securities,” as that term is defined in Rule 144 under the Securities Act. These restricted securities are eligible for public sale only if they are registered under the Securities Act or if they qualify for an exemption from registration under Rules 144 or 701 under the Securities Act, which are summarized below.

In addition, each common unit held by our Continuing Equity Owners will be redeemable, at the election of each Continuing Equity Owner (subject in certain circumstances to time-based vesting requirements and limitations on the common units that will be converted from HR units in connection with the Transactions), for, at our election, newly-issued shares of our Class A common stock on a one-for-one basis or a cash payment equal to a volume weighted average market price of one share of Class A common stock for each common unit redeemed, in each case, in accordance with the terms of the FAH LLC Agreement; provided that, at our election, we may effect a direct exchange by Funko, Inc. of such Class A common stock or such cash, as applicable, for such common units. The Continuing Equity Owners may exercise such redemption right for as long as their common units remain outstanding. See “Certain Relationships and Related Party Transactions—FAH LLC Agreement.” Upon consummation of this offering, our Continuing Equity Owners will hold                      common units, all of which will be exchangeable for shares of our Class A common stock. The shares of Class A common stock we issue upon such exchanges would be “restricted securities” as defined in Rule 144 unless we register such issuances. However, we will enter into a Registration Rights Agreement with certain of the Original Equity Owners (including each of our executive officers) that will require us to register under the Securities Act these shares of Class A common stock. See “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

Lock-Up Agreements

We, our officers and directors, the selling stockholders and the Original Equity Owners will agree that, without the prior written consent of Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the underwriters, we and they will not, subject to certain exceptions, during the period ending 180 days after the date of this prospectus:

 

   

offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly or publicly disclose the intention to make

 

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any offer, sale, pledge or disposition of any shares of our Class A common stock, or any options or warrants to purchase any shares of our Class A common stock, or any securities convertible into, or exchangeable for, or that represent the right to receive, shares of our Class A common stock; or

 

    enter into any swap or other arrangement that transfers to another, all or a portion of the economic consequences of ownership of our Class A common stock or any securities convertible into or exercisable or exchangeable for shares of our Class A common stock,

whether any transaction described above is to be settled by delivery of our Class A common stock or such other securities, in cash or otherwise.

The representatives of the underwriters have advised us that they have no present intent or arrangement to release any shares subject to a lock-up, and will consider the release of any lock-up on a case-by-case basis. Upon a request to release any shares subject to a lock-up, the representatives of the underwriters would consider the particular circumstances surrounding the request, including, but not limited to, the length of time before the lock-up expires, the number of shares requested to be released, reasons for the request, the possible impact on the market or our Class A common stock and whether the holder of our shares requesting the release is an officer, director or other affiliate of ours.

Upon the expiration of the applicable lock-up periods, substantially all of the shares subject to such lock-up restrictions will become eligible for sale, subject to the limitations discussed above.

Rule 144

Affiliate Resales of Restricted Securities

In general, beginning 90 days after the effective date of the registration statement of which this prospectus is a part, a person who is an affiliate of ours, or who was an affiliate at any time during the 90 days before a sale, who has beneficially owned shares of our Class A common stock for at least 180 days would be entitled to sell in “broker’s transactions” or certain “riskless principal transactions” or to market makers, a number of shares within any three-month period that does not exceed the greater of:

 

    1% of the number of shares of our Class A common stock then outstanding; and

 

    the average weekly trading volume in our Class A common stock on the Nasdaq Global Select Market during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.

Affiliate resales under Rule 144 are also subject to the availability of current public information about us. In addition, if the number of shares being sold under Rule 144 by an affiliate during any three-month period exceeds 5,000 shares or has an aggregate sale price in excess of $50,000, the seller must file a notice on Form 144 with the SEC and the Nasdaq Global Select Market concurrently with either the placing of a sale order with the broker or the execution directly with a market maker.

Non-Affiliate Resales of Restricted Securities

Under Rule 144, a person who is not an affiliate of ours at the time of sale, and has not been an affiliate at any time during the 90 days preceding a sale, and who has beneficially owned shares of our Class A common stock for at least six months but less than a year, is entitled to sell such shares subject only to the availability of current public information about us. If such person has held our shares for at least one year, such person can resell without regard to any Rule 144 restrictions, including the 90-day public company requirement and the current public information requirement.

 

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Non-affiliate resales are not subject to the manner of sale, volume limitation or notice filing provisions of Rule 144.

Rule 701

In general, under Rule 701, any of our employees, directors, officers, consultants or advisors who purchases shares from us in connection with a compensatory stock or option plan or other written agreement before the effective date of the registration statement of which this prospectus forms a part is entitled to sell such shares 90 days after such effective date in reliance on Rule 144. Our affiliates can resell shares in reliance on Rule 144 without having to comply with the holding period requirement, and non-affiliates of the issuer can resell shares in reliance on Rule 144 without having to comply with the current public information and holding period requirements.

The SEC has indicated that Rule 701 will apply to typical stock options granted by an issuer before it becomes subject to the reporting requirements of the Exchange Act, along with the shares acquired upon exercise of such options, including exercises after an issuer becomes subject to the reporting requirements of the Exchange Act.

Equity Plans

We intend to file one or more registration statements on Form S-8 under the Securities Act to register the offer and sale of all shares of Class A common stock subject to outstanding stock options and Class A common stock issued or issuable under our 2017 Plan. As of                 , 2017, options to purchase                  shares of Class A common stock were outstanding. We expect to file the registration statement covering shares offered pursuant to our 2017 Plan shortly after the date of this prospectus, permitting the resale of such shares by nonaffiliates in the public market without restriction under the Securities Act and the sale by affiliates in the public market subject to compliance with the resale provisions of Rule 144.

Registration Rights

See “Certain Relationships and Related Party Transactions—Registration Rights Agreement.”

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS

FOR NON-U.S. HOLDERS OF CLASS A COMMON STOCK

The following discussion is a summary of the material U.S. federal income tax consequences to Non-U.S. Holders (as defined below) of the ownership and disposition of our Class A common stock issued pursuant to this offering, but does not purport to be a complete analysis of all potential tax effects. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended, or the Code, Treasury Regulations promulgated under the Code, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service, or the IRS, in each case in effect as of the date of this prospectus. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Non-U.S. Holder of our Class A common stock. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a contrary position to that discussed below regarding the tax consequences of the ownership and disposition of our Class A common stock.

This discussion is limited to Non-U.S. Holders that hold our Class A common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without limitation:

 

    U.S. expatriates and former citizens or long-term residents of the United States;

 

    persons subject to the alternative minimum tax;

 

    persons holding our Class A common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;

 

    banks, insurance companies, and other financial institutions;

 

    brokers, dealers or traders in securities;

 

    “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;

 

    entities or arrangements treated as partnerships for U.S. federal income tax purposes and other pass-through entities (and investors in such entities);

 

    tax-exempt organizations or governmental organizations;

 

    persons deemed to sell our Class A common stock under the constructive sale provisions of the Code;

 

    persons who hold or receive our Class A common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and

 

    tax-qualified retirement plans.

If an entity treated as a partnership for U.S. federal income tax purposes holds our Class A common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our Class A common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

 

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THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE OWNERSHIP AND DISPOSITION OF OUR CLASS A COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.

Definition of a Non-U.S. Holder

For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our Class A common stock that is neither a “U.S. person” nor an entity treated as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:

 

    an individual who is a citizen or resident of the United States;

 

    a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;

 

    an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

 

    a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.

Distributions

Distributions of cash or property on our Class A common stock will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied against and reduce a Non-U.S. Holder’s adjusted tax basis in its Class A common stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “—Sale or Other Taxable Disposition.”

Subject to the discussion below on effectively connected income, dividends paid to a Non-U.S. Holder of our Class A common stock will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate). A Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.

If dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such dividends are attributable), the Non-U.S. Holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI, certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States.

 

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Any such effectively connected dividends will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items. Non-U.S. Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Sale or Other Taxable Disposition

Subject to the discussion below on information reporting, backup withholding and foreign accounts, a Non-U.S. Holder will not be subject to U.S. federal income tax on any gain realized upon the sale or other taxable disposition of our Class A common stock unless:

 

    the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable);

 

    the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or

 

    our Class A common stock constitutes a U.S. real property interest, or USRPI, by reason of our status as a U.S. real property holding corporation, or USRPHC, for U.S. federal income tax purposes at any applicable time within the shorter of the five year period preceding the Non-U.S. Holder’s disposition of or the Non-U.S. Holder’s holding period for, our Class A common stock.

Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.

Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.

With respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our non-U.S. real property interests and our other business assets, there can be no assurance we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our Class A common stock will not be subject to U.S. federal income tax if our Class A common stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually and constructively, 5% or less of our Class A common stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder’s holding period.

Non-U.S. Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.

 

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Information Reporting and Backup Withholding

Payments of dividends on our Class A common stock will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a United States person and the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or other applicable documentation, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any dividends on our Class A common stock paid to the Non-U.S. Holder, regardless of whether any tax was actually withheld. In addition, proceeds of the sale or other taxable disposition of our Class A common stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting, if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a United States person, or the holder otherwise establishes an exemption. Proceeds of a disposition of our Class A common stock conducted through a non-U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting.

Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.

Additional Withholding Tax on Payments Made to Foreign Accounts

Withholding taxes may be imposed under Sections 1471 to 1474 of the Code (such sections commonly referred to as the Foreign Account Tax Compliance Act, or FATCA) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or gross proceeds from the sale or other disposition of, our Class A common stock paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (1) the foreign financial institution undertakes certain diligence and reporting obligations, (2) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. Such certification or exemption must typically be evidenced by a Non-U.S. Holder’s delivery of a properly executed IRS Form W-8BEN-E. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.

Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies to payments of dividends on our Class A common stock, and will apply to payments of gross proceeds from the sale or other disposition of such stock on or after January 1, 2019.

Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our Class A common stock.

 

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UNDERWRITING

We, the selling stockholders and the underwriters named below have entered into an underwriting agreement with respect to the shares being offered. Subject to certain conditions, each underwriter has severally agreed to purchase the number of shares indicated in the following table. Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated are the representatives of the underwriters.

 

Underwriters

   Number of Shares  

Goldman Sachs & Co. LLC

  

J.P. Morgan Securities LLC

  

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

  

Piper Jaffray & Co.

  

Jefferies LLC

  

Stifel, Nicolaus & Company, Incorporated

  

BMO Capital Markets Corp.

  

SunTrust Robinson Humphrey, Inc.

  
  

 

 

 

Total

  
  

 

 

 

The underwriters are committed to take and pay for all of the shares being offered, if any are taken, other than the shares covered by the option described below unless and until this option is exercised. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated.

The underwriters have an option to buy up to an additional                  shares from us and the selling stockholders to cover sales by the underwriters of a greater number of shares than the total number set forth in the table above. They may exercise that option for 30 days. If any shares are purchased pursuant to this option, the underwriters will severally purchase shares in approximately the same proportion as set forth in the table above.

The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters by us and the selling stockholders. Such amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase                  additional shares.

 

Paid by the Company

   No Exercise      Full Exercise  

Per Share

   $                   $               

Total

   $      $  

 

Paid by the Selling Stockholders

   No Exercise      Full Exercise  

Per Share

   $                   $               

Total

   $      $  

Shares sold by the underwriters to the public will initially be offered at the initial public offering price set forth on the cover of this prospectus. Any shares sold by the underwriters to securities dealers may be sold at a discount of up to $        per share from the initial public offering price. After the initial offering of the shares, the representatives may change the offering price and the other selling terms. The offering of the shares by the underwriters is subject to receipt and acceptance and subject to the underwriters’ right to reject any order in whole or in part. Sales of shares made outside of the United States may be made by affiliates of the underwriters.

 

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A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters, or selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make internet distributions on the same basis as other allocations.

We and our officers, directors, the selling stockholders and the Original Equity Owners have agreed with the underwriters, subject to certain exceptions, not to dispose of or hedge any of their Class A common stock or securities convertible into or exchangeable for shares of Class A common stock during the period from the date of this prospectus continuing through the date 180 days after the date of this prospectus, except with the prior written consent of the representatives. This agreement does not apply to any existing employee benefit plans, among other exceptions. See “Shares Eligible for Future Sale” for a discussion of certain transfer restrictions.

Prior to the offering, there has been no public market for the shares. The initial public offering price will be negotiated among us, the selling stockholders and the representatives. Among the factors to be considered in determining the initial public offering price of the shares, in addition to prevailing market conditions, will be our historical performance, estimates of our business potential and earnings prospects, an assessment of our management and the consideration of the above factors in relation to market valuation of companies in related businesses.

We have applied to list the Class A common stock on the Nasdaq Global Select Market under the symbol “FNKO.”

In connection with the offering, the underwriters may purchase and sell shares of Class A common stock in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering, and a short position represents the amount of such sales that have not been covered by subsequent purchases. A “covered short position” is a short position that is not greater than the amount of additional shares for which the underwriters’ option described above may be exercised. The underwriters may cover any covered short position by either exercising their option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to cover the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase additional shares pursuant to the option described above. “Naked” short sales are any short sales that create a short position greater than the amount of additional shares for which the option described above may be exercised. The underwriters must cover any such naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the Class A common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of Class A common stock made by the underwriters in the open market prior to the completion of the offering.

The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.

Purchases to cover a short position and stabilizing transactions, as well as other purchases by the underwriters for their own accounts, may have the effect of preventing or retarding a decline in the

 

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market price of our stock, and together with the imposition of the penalty bid, may stabilize, maintain or otherwise affect the market price of the Class A common stock. As a result, the price of the Class A common stock may be higher than the price that otherwise might exist in the open market. The underwriters are not required to engage in these activities and may end any of these activities at any time. These transactions may be effected on the Nasdaq Global Select Market, in the over-the-counter market or otherwise.

We estimate that our share of the total expenses of the offering, excluding underwriting discounts and commissions, will be approximately $        . We have agreed to reimburse the underwriters for certain of their expenses in an amount up to $        .

We and the selling stockholders have agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act of 1933.

The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. Certain of the underwriters and their respective affiliates have provided, and may in the future provide, a variety of these services to the issuer and to persons and entities with relationships with the issuer, for which they received or will receive customary fees and expenses. For example, Piper Jaffray & Co. received a customary arrangement fee for acting as sole debt placement agent for the Term Loan B Facility.

In the ordinary course of their various business activities, the underwriters and their respective affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers, and such investment and trading activities may involve or relate to assets, securities or instruments of the issuer (directly, as collateral securing other obligations or otherwise) or persons and entities with relationships with the issuer. The underwriters and their respective affiliates may also communicate independent investment recommendations, market color or trading ideas or publish or express independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in such assets, securities and instruments.

Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

European Economic Area

In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) an offer to the public of our Class A common stock may not be made in that Relevant Member State, except that an offer to the public in that

 

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Relevant Member State of our Class A common stock may be made at any time under the following exemptions under the Prospectus Directive:

 

    To any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

    To fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the Representatives for any such offer; or

 

    In any other circumstances falling within Article 3(2) of the Prospectus Directive;

provided that no such offer or shares of our Class A common stock shall require us, the selling stockholders or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.

For the purposes of this provision, the expression an “offer to public” in relation to our Class A common stock in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and our Class A common stock to be offered so as to enable an investor to decide to purchase our Class A common stock, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and the expression “Prospectus Directive” means Directive 2003/71/EC (as amended), including by Directive 2010/73/EU and includes any relevant implementing measure in the Relevant Member State.

This European Economic Area selling restriction is in addition to any other selling restrictions set out below.

United Kingdom

In the United Kingdom, this prospectus is only addressed to and directed at qualified investors who are (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the Order); or (ii) high net worth entities and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). Any investment or investment activity to which this prospectus relates is available only to relevant persons and will only be engaged in with relevant persons. Any person who is not a relevant person should not act or rely on this prospectus or any of its contents.

Canada

The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions, and Ongoing Registrant Obligations. Any resale of the securities must be made in accordance with an exemption form, or in a transaction not subject to, the prospectus requirements of applicable securities laws.

Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

 

 

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Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.

Hong Kong

The securities may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) (“Companies (Winding Up and Miscellaneous Provisions) Ordinance”) or which do not constitute an invitation to the public within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“Securities and Futures Ordinance”), or (ii) to “professional investors” as defined in the Securities and Futures Ordinance and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and no advertisement, invitation or document relating to the securities may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong Kong as defined in the Securities and Futures Ordinance and any rules made thereunder.

Singapore

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined under Section 4A of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”)) under Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to conditions set forth in the SFA.

Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor, the securities (as defined in Section 239(1) of the SFA) of that corporation shall not be transferable for 6 months after that corporation has acquired the shares under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer in that corporation’s securities pursuant to Section 275(1A) of the SFA, (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore (“Regulation 32”).

Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is a trust (where the trustee is not an accredited investor (as defined in Section 4A of the SFA)) whose sole purpose is to hold investments and each beneficiary of the trust is an accredited

 

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investor, the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for 6 months after that trust has acquired the shares under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction (whether such amount is to be paid for in cash or by exchange of securities or other assets), (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32.

Japan

The securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended), or the FIEA. The securities may not be offered or sold, directly or indirectly, in Japan or to or for the benefit of any resident of Japan (including any person resident in Japan or any corporation or other entity organized under the laws of Japan) or to others for reoffering or resale, directly or indirectly, in Japan or to or for the benefit of any resident of Japan, except pursuant to an exemption from the registration requirements of the FIEA and otherwise in compliance with any relevant laws and regulations of Japan.

Australia

No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities and Investments Commission (“ASIC”), in relation to the offering. This offering document does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001 (the “Corporations Act”), and does not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations Act.

Any offer in Australia of the shares may only be made to persons (the “Exempt Investors”) who are “sophisticated investors” (within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the shares without disclosure to investors under Chapter 6D of the Corporations Act.

The shares applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring shares must observe such Australian on-sale restrictions.

This offering document contains general information only and does not take account of the investment objectives, financial situation or particular needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment decision, investors need to consider whether the information in this offering document is appropriate to their needs, objectives and circumstances, and, if necessary, seek expert advice on those matters.

 

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Dubai International Financial Centre

This offering document relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority (“DFSA”). This offering document is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth in this prospectus and has no responsibility for the offering document. The securities to which this offering document relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the securities offered should conduct their own due diligence on the securities. If you do not understand the contents of this offering document you should consult an authorized financial advisor.

Switzerland

We have not and will not register with the Swiss Financial Market Supervisory Authority (“FINMA”) as a foreign collective investment scheme pursuant to Article 119 of the Federal Act on Collective Investment Scheme of 23 June 2006, as amended (“CISA”), and accordingly the securities being offered pursuant to this prospectus have not and will not be approved, and may not be licenseable, with FINMA. Therefore, the securities have not been authorized for distribution by FINMA as a foreign collective investment scheme pursuant to Article 119 CISA and the securities offered hereby may not be offered to the public (as this term is defined in Article 3 CISA) in or from Switzerland. The securities may solely be offered to “qualified investors,” as this term is defined in Article 10 CISA, and in the circumstances set out in Article 3 of the Ordinance on Collective Investment Scheme of 22 November 2006, as amended (“CISO”), such that there is no public offer. Investors, however, do not benefit from protection under CISA or CISO or supervision by FINMA. This prospectus and any other materials relating to the securities are strictly personal and confidential to each offeree and do not constitute an offer to any other person. This prospectus may only be used by those qualified investors to whom it has been handed out in connection with the offer described in this prospectus and may neither directly or indirectly be distributed or made available to any person or entity other than its recipients. It may not be used in connection with any other offer and shall in particular not be copied and/or distributed to the public in Switzerland or from Switzerland. This prospectus does not constitute an issue prospectus as that term is understood pursuant to Article 652a and/or 1156 of the Swiss Federal Code of Obligations. We have not applied for a listing of the securities on the SIX Swiss Exchange or any other regulated securities market in Switzerland, and consequently, the information presented in this prospectus does not necessarily comply with the information standards set out in the listing rules of the SIX Swiss Exchange and corresponding prospectus schemes annexed to the listing rules of the SIX Swiss Exchange.

 

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LEGAL MATTERS

The validity of the shares of Class A common stock offered hereby will be passed upon for us by Latham & Watkins LLP, New York, New York. Wilson Sonsini Goodrich & Rosati, Professional Corporation, Seattle, Washington, has acted as counsel for the underwriters and Hogan Lovells US LLP, Philadelphia, Pennsylvania, has acted as counsel for the selling stockholders in connection with certain legal matters related to this offering.

EXPERTS

The consolidated financial statements of Funko Acquisition Holdings, L.L.C. and its subsidiaries as of December 31, 2016 and 2015, for the year ended December 31, 2016, for the periods from October 31, 2015 through December 31, 2015 (Successor) and from January 1, 2015 through October 30, 2015 (Predecessor) and the balance sheet of Funko, Inc. as of April 21, 2017, appearing in this prospectus and registration statement have been audited by Ernst & Young, LLP, independent registered public accounting firm, as set forth in their reports thereon appearing elsewhere herein, and are included in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the Securities and Exchange Commission a registration statement on Form S-1 under the Securities Act with respect to the shares of Class A common stock offered hereby. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules filed with the registration statement. For further information about us and the Class A common stock offered hereby, we refer you to the registration statement and the exhibits filed with the registration statement. Statements contained in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement are not necessarily complete, and each such statement is qualified in all respects by reference to the full text of such contract or other document filed as an exhibit to the registration statement.

Upon the closing of this offering, we will be required to file periodic reports, proxy statements, and other information with the SEC pursuant to the Exchange Act. You may read and copy this information at the Public Reference Room of the Securities and Exchange Commission, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the public reference rooms by calling the SEC at 1-800-SEC 0330. The SEC also maintains an internet website that contains reports, proxy statements and other information about registrants, like us, that file electronically with the SEC. The address of that site is www.sec.gov . We also maintain a website at www.funko.com , through which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

 

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INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

     Page  

Funko, Inc.

  

Report of Independent Registered Public Accounting Firm

     F-2  

Balance Sheet as of April 21, 2017

     F-3  

Balance Sheet as of June 30, 2017 (Unaudited)

     F-3  

Notes to Balance Sheet

     F-4  

Funko Acquisition Holdings, L.L.C. and Subsidiaries

  

Consolidated Financial Statements

Years Ended December 31, 2016 and 2015 and as of December 31, 2016 and 2015

  

Report of Independent Registered Public Accounting Firm

     F-5  

Consolidated Balance Sheets

     F-6  

Consolidated Statements of Operations

     F-7  

Consolidated Statements of Members’ Equity

     F-8  

Consolidated Statements of Cash Flows

     F-9  

Notes to Consolidated Financial Statements

     F-10  

Interim Condensed Consolidated Financial Statements (Unaudited)

Six Months Ended June 30, 2017 and 2016 and as of June 30, 2017 and December 31, 2016

  

Condensed Consolidated Balance Sheets

     F-29  

Condensed Consolidated Statements of Operations

     F-30  

Condensed Consolidated Statements of Comprehensive Income (Loss)

     F-31  

Condensed Consolidated Statements of Members’ Equity

     F-32  

Condensed Consolidated Statements of Cash Flows

     F-33  

Notes to Condensed Consolidated Financial Statements

     F-34  

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors of Funko, Inc.

We have audited the accompanying balance sheet of Funko, Inc. (the “Company”) as of April 21, 2017. The balance sheet is the responsibility of the Company’s management. Our responsibility is to express an opinion on the balance sheet based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statement is free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheet, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, the balance sheet referred to above presents fairly, in all material respects, the financial position of Funko, Inc. as of April 21, 2017 in conformity with U.S. generally accepted accounting principles.

/s/ Ernst & Young LLP

Seattle, Washington

April 28, 2017

 

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Funko, Inc.

Balance Sheets

 

     June 30,
2017
     April 21,
2017
 
    

(unaudited)

        

Assets

   $      $  

Commitments and contingencies

     

Stockholder’s equity:

     

Common stock, par value $0.0001 per share; 100 shares authorized, issued and outstanding

   $      $  

Total stockholder’s equity

   $      $  

 

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Funko, Inc.

Notes to Balance Sheets

April 21, 2017 and June 30, 2017

(Unaudited)

 

1 . Organization

Funko, Inc. (the “Company”) was formed as a Delaware corporation on April 21, 2017. The Company was formed for the purpose of completing a public offering of its Class A common stock and related transactions in order to carry on the business of Funko Acquisition Holdings, L.L.C. The Company will be the sole managing member of Funko Acquisition Holdings, L.L.C. and will operate and control all of the business and affairs of Funko Acquisition Holdings, L.L.C. and, through Funko Acquisition Holdings, L.L.C and its subsidiaries, continue to conduct the business now conducted by these subsidiaries.

 

2. Summary of Significant Accounting Policies

Basis of Accounting

The Balance Sheets are presented in accordance with accounting principles generally accepted in the United States of America. Separate statements of operations, comprehensive income, changes in stockholder’s equity, and cash flows have not been presented in the financial statements because there have been no activities in this entity.

I ncome Taxes

The Company is treated as a subchapter C corporation, and therefore, is subject to both federal and state income taxes. Funko Acquisition Holdings, L.L.C. will continue to be recognized as a limited liability company, a pass-through entity for income tax purposes.

 

3 . Stockholder’s Equity

The Company is authorized to issue 100 shares of Common Stock, par value $0.0001 per share, 100 shares of which have been issued and were outstanding as of June 30, 2017.

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Members of Funko Acquisition Holdings, L.L.C. and Subsidiaries

We have audited the accompanying consolidated balance sheets of Funko Acquisition Holdings, L.L.C. and Subsidiaries as of December 31, 2016 and 2015 (Successor), and the related consolidated statements of operations, members’ equity and cash flows for the year ended December 31, 2016, for the period from October 31, 2015 through December 31, 2015 (Successor), and the period from January 1, 2015 through October 30, 2015 (Predecessor). These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Funko Acquisition Holdings, L.L.C. and Subsidiaries as of December 31, 2016 and 2015, and the consolidated results of its operations and its cash flows for the year ended December 31, 2016, for the period from October 31, 2015 through December 31, 2015 (Successor), and for the period from January 1, 2015 through October 30, 2015 (Predecessor), in conformity with U.S. generally accepted accounting principles.

/s/ Ernst & Young LLP

Seattle, Washington

April 28, 2017

 

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Table of Contents

Funko Acquisition Holdings, L.L.C. and Subsidiaries

Consolidated Balance Sheets

(in thousands, except share amounts)

 

     December 31,  
     2016     2015  
Assets  

Current assets

    

Cash and cash equivalents

   $ 6,161     $ 24,411  

Accounts receivable, net

     83,607       47,942  

Inventory

     43,616       49,629  

Prepaid expenses and other current assets

     19,040       12,368  
  

 

 

   

 

 

 

Total current assets

     152,424       134,350  

Property and equipment, net

     25,473       15,324  

Goodwill

     97,453       97,453  

Intangible assets, net

     243,796       256,741  

Other assets

     3,091       1,462  
  

 

 

   

 

 

 

Total assets

   $ 522,237     $ 505,330  
  

 

 

   

 

 

 
Liabilities and Members’ Equity  

Current liabilities:

    

Line of credit

   $ 6,729     $  

Current portion of long-term debt, net of unamortized discount

     7,130       5,626  

Accounts payable

     23,653       9,490  

Accrued royalties

     21,284       13,564  

Accrued expenses and other current liabilities

     13,746       11,278  

Current portion of contingent consideration

     25,000       38,879  
  

 

 

   

 

 

 

Total current liabilities

     97,542       78,837  

Long-term debt

     203,894       164,220  

Contingent consideration

           18,463  

Deferred rent

     3,424       254  

Commitments and contingencies (Note 13)

    

Members’ equity:

    

Class A units, $1,000 par value; unlimited units authorized; 219,311 units and 204,311 units issued and outstanding as of December 31, 2016 and December 31, 2015, respectively

     219,311       204,311  

Common units, no par value; 12,500 units and 10,000 units authorized; 11,578 units and 7,500 units issued and outstanding as of December 31, 2016 and December 31, 2015, respectively

            

Senior Preferred units, $1,000 par value; no units authorized, issued, and outstanding as of December 31, 2016 and December 31, 2015

            

Home Run units, no par value; 11,724 units authorized; 11,724 units issued and outstanding as of December 31, 2016 and December 31, 2015

            

Additional paid-in-capital

     58,090       46,290  

Accumulated deficit

     (60,024     (7,045
  

 

 

   

 

 

 

Total members’ equity

     217,377       243,556  
  

 

 

   

 

 

 

Total liabilities and members’ equity

   $ 522,237     $ 505,330  
  

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Consolidated Statements of Operations

(in thousands)

 

     Successor              Predecessor  
     Year Ended
December 31,
2016
     Period from
October 31, 2015
through
December 31,
2015
             Period from
January 1, 2015
through
October 30, 2015
 

Net sales

   $ 426,717      $ 56,565          $ 217,491  

Cost of sales (exclusive of depreciation and amortization shown separately below)

     280,396        44,485            131,621  

Selling, general, and administrative expenses

     77,525        13,894            37,145  

Acquisition transaction costs

     1,140        7,559            13,301  

Depreciation and amortization

     23,509        3,370            5,723  
  

 

 

    

 

 

        

 

 

 

Total operating expenses

     382,570        69,308            187,790  
  

 

 

    

 

 

        

 

 

 

Income (loss) from operations

     44,147        (12,743          29,701  

Interest expense, net

     17,267        2,818            2,202  
  

 

 

    

 

 

        

 

 

 

Net income (loss)

   $ 26,880      $ (15,561        $ 27,499  
  

 

 

    

 

 

        

 

 

 

See accompanying notes to consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Consolidated Statements of Members’ Equity

(in thousands)

 

   

 

Preferred Units

    Common
Units
    Class A Units     HR Units     Common
Units
    Recourse
Loans To

Management
    Undistributed
Earnings
(Accumulated

Deficit)
    Members’
Equity
 
    Units     Amounts     Units     Amounts     Units     Amounts     Units     Amounts     Units     Amounts        

Predecessor—January 1, 2015

    13,000     $ 18,257       1,000     $                   $ 18,494     $ 36,751  

Equity-based compensation

          9,925                       9,925  

Options exercised, settled in cash

        688       3,170                       3,170  

Net income

                          27,499       27,499  

Distributions to members

                          (12,171     (12,171
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Predecessor—October 30, 2015

    13,000     $ 18,257       1,688     $ 13,095           $           $           $     $     $ 33,822     $ 65,174  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Successor—October 31, 2015

                         

Members’ contributions

            125     $ 116,120       $       $     $     $ 9,431     $ 125,551  

Fair value of carryover equity instruments

            78       128,433                   128,433  

Equity instruments issued as purchase consideration

                12       649               649  

Equity-based compensation

              4,204           8       280           4,484  

Net loss

                          (15,561     (15,561

Recourse loans to management

            1       915               (915        
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Successor—December 31, 2015

        $           $       204     $ 249,672       12     $ 649       8     $ 280     $ (915   $ (6,130   $ 243,556  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Members’ contributions

            15       24,431                 (9,431     15,000  

Equity-based compensation

              240           4       2,129           2,369  

Net income

                          26,880       26,880  

Recourse loans to management

                        142         142  

Distributions to members

                          (70,570     (70,570
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Successor—December 31, 2016

        $           $       219     $ 274,343       12     $ 649       12     $ 2,409     $ (773   $ (59,251   $ 217,377  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Consolidated Statements of Cash Flows

(in thousands)

 

    Successor           Predecessor  
    Year Ended
December 31,
2016
    Period from
October 31, 2015
through
December 31,
2015
          Period from
January 1, 2015
through
October 30,
2015
 

Operating Activities

         

Net income (loss)

  $ 26,880     $ (15,561       $ 27,499  
 

Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:

         

Depreciation and amortization

    23,509       3,370           5,723  

Equity-based compensation

    2,369       4,484           9,925  

Contingent consideration

    5,503       1,540            

Accretion of discount on long-term debt

    1,150       164            

Amortization of debt issuance costs

    248       253           732  

Changes in operating assets and liabilities:

         

Accounts receivable, net

    (33,624     6,111           (36,133

Inventory

    6,013       10,239           (17,980

Prepaid expenses and other assets

    (8,549     52           (6,000

Accounts payable

    14,652       (1,858         16,692  

Accrued royalties

    7,720       7,956           (54

Accrued expenses and other liabilities

    3,597       (2,640         8,134  
 

 

 

   

 

 

       

 

 

 

Net cash provided by operating activities

    49,468       14,110           8,538  
 

 

 

   

 

 

       

 

 

 

Investing Activities

         

Acquisitions, net of cash

    (903     (241,479         (1,090

Purchase of property and equipment

    (21,202     (2,942         (8,953
 

 

 

   

 

 

       

 

 

 

Net cash used in investing activities

    (22,105     (244,421         (10,043
 

 

 

   

 

 

       

 

 

 

Financing Activities

         

Borrowings on line of credit

    57,741       11,513           198,607  

Payments on line of credit

    (51,012     (38,270         (177,741

Proceeds from long-term debt, net

    47,628       169,682            

Payments of long-term debt

    (7,600     (20,000         (475

Repayment of related-party note

          (2,500          

Debt issuance costs

          (1,520          

Contingent consideration

    (36,942                

Contributions from members

    15,000       125,551            

Distributions to members

    (70,428               (12,171

Proceeds from exercise of equity-based options

                    3,170  
 

 

 

   

 

 

       

 

 

 

Net cash (used in) provided by financing activities

    (45,613     244,456           11,390  
 

 

 

   

 

 

       

 

 

 

Net (decrease) increase in cash and cash equivalents

    (18,250     14,145           9,885  

Cash and cash equivalents at beginning of period

    24,411       10,266           381  
 

 

 

   

 

 

       

 

 

 

Cash and cash equivalents at end of period

  $ 6,161     $ 24,411         $ 10,266  
 

 

 

   

 

 

       

 

 

 

Supplemental Cash Flow Information

         

Cash paid for interest

  $ 12,455     $ 1,496         $ 1,756  

Accrual of property and equipment—non cash

    (489     1,377           512  

Issuance of common units for acquisition—non cash

          129,997            

Issuance (reimbursement) of management recourse loans—non cash

    (142     915            

Tenant allowance—non cash

    2,041                  

See accompanying notes to consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Notes to Consolidated Financial Statements

1. Description of Business, Organization, and Basis of Presentation

Funko Acquisition Holdings, L.L.C. (together with its subsidiaries, the “Company” or “FAH, LLC”) is a Delaware limited liability company. The Company is headquartered in Everett, Washington and is a leading pop culture consumer products company. The Company designs, sources, and distributes licensed pop culture products across multiple categories, including figures, plush and accessories.

FAH, LLC is a holding company with no operating assets or operations and was formed on September 24, 2015. FAH, LLC owns 100% of Funko Holdings LLC, a Delaware limited liability company (“FHL”), which is also a holding company with no operating assets or operations, and which was formed on May 28, 2013. FHL owns 100% of Funko, LLC, a limited liability company formed in the state of Washington, which is the Company’s operating entity.

On October 30, 2015, ACON Funko Investors, L.L.C., through FAH, LLC, acquired a controlling interest in FHL and its subsidiary, Funko, LLC. As a result of this acquisition (the “ACON Acquisition”), which is discussed further in Note 3, Acquisitions, the financial information for the period after October 30, 2015 represents the consolidated financial information of the “Successor” company. Prior to and including October 30, 2015, the consolidated financial statements include the accounts of the “Predecessor” company. Financial information in the Predecessor period principally relates to FHL and its subsidiary Funko, LLC. References to the “Successor 2015 Period” refer to the period from October 31, 2015 through December 31, 2015. References to the “Predecessor 2015 Period” refer to the period from January 1, 2015 through October 30, 2015, prior to the ACON Acquisition.

Due to the change in the basis of accounting resulting from the application of the acquisition method of accounting, the Predecessor’s consolidated financial statements and the Successor’s consolidated financial statements are not necessarily comparable. See Note 3, Acquisitions, for additional information. As the Predecessor and the Successor have the same accounting policies, no conforming accounting policy adjustments were necessary.

The accompanying consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”). All intercompany transactions and balances are eliminated in consolidation.

Certain prior year balances in the consolidated financial statements have been reclassified to conform with the current year presentation.

2. Summary of Significant Accounting Policies

Use of Estimates

The preparation of the Company’s consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements as well as the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates and assumptions.

Cash Equivalents

Cash equivalents include amounts due from third-party financial institutions for credit and debit card transactions. These receivables typically settle in less than five days and were $0.1 million and $0.2 million as of December 31, 2016 and 2015, respectively.

 

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Concentrations of Business and Credit Risk

The Company maintains its cash within bank deposit accounts at high quality, accredited financial institutions. These amounts at times may exceed federally insured limits. The Company has not experienced any credit losses in such accounts and does not believe it is exposed to significant credit risk on cash.

The Company grants credit to its customers on an unsecured basis. As of December 31, 2016 and 2015, the balance of accounts receivable consisted of 17% and 28%, respectively, of amounts owed from the largest customer for the given period. The collection of these receivables has been within the terms of the associated customer agreement.

For the year ended December 31, 2016, approximately 12% of net sales was generated from one customer. For the Successor 2015 Period, approximately 24%, 20%, and 13% of net sales were generated from three customers.

For the year ended December 31, 2016, 15% of net sales was related to one license agreement. For the Successor 2015 Period, we had two license agreements that accounted for 23% and 12% of net sales. The top revenue producing license agreements were different each year. There are no significant license agreements expiring during 2017.

Other Comprehensive Income

The Company does not have any comprehensive income recorded, and therefore does not separately present a statement of comprehensive income in its consolidated financial statements.

Accounts Receivable and Allowance for Doubtful Accounts

Accounts receivable, net, primarily represent customer receivables, recorded at invoiced amount, net of a sales allowance and an allowance for doubtful accounts. An allowance for doubtful accounts is determined based on various factors, including specific identification of balances at risk for not being collected, historical experience and existing economic conditions. Receivables are written-off when all reasonable collection efforts have been exhausted and it is probable that any future payments due will not be collected.

Royalties

The Company enters into agreements for rights to licensed trademarks and characters for use in its products. These licensing agreements require the payment of royalty fees to the licensor based on a percentage of revenue. Many licensing agreements also require minimum royalty commitments. When royalty fees are paid in advance, the Company records these payments as a prepaid asset, either current or long-term based on when the Company expects to receive revenues under the related licensing agreement. If the Company determines that it is probable that the expected revenues will not be realized, a reserve is recorded against the prepaid asset for the non-recoverable portion. As of December 31, 2016, the Company has recorded a prepaid asset in the amount of $6.9 million, net of a reserve of $0.6 million. As of December 31, 2015, the Company recorded a prepaid asset of $6.9 million, net of a reserve of $0.3 million.

The Company records a royalty liability as revenues are earned based on the terms of the licensing arrangement. In situations where a minimum commitment is not expected to be met based on expected revenues, the Company will accrue up to the minimum amount when it is reasonably certain that revenues generated will not meet the minimum commitment. Royalty and license expense is

 

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recorded to cost of sales on the consolidated statements of operations. Royalty expenses for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period were $64.7 million, $9.2 million and $31.6 million, respectively.

Inventory

Inventory consists primarily of figures, plush, accessories and other finished goods, and is accounted for using the first-in, first-out (“FIFO”) method. The Company maintains reserves for excess and obsolete inventories to reflect the inventory balance at the lower of cost or market value. This valuation requires us to make judgments, based on currently available information, about the likely method of disposition, such as through sales to customers, or liquidation, and expected recoverable value of each disposition category. The Company estimates obsolescence based on assumptions regarding future demand. Inventory costs include direct product costs and freight costs. As a result of the ACON Acquisition, inventory was adjusted to fair value as of October 31, 2015. See Note 3, Acquisitions.

Property and Equipment, net

Property and equipment are stated at cost, less accumulated depreciation. Property and equipment is depreciated using the straight-line method over the estimated useful lives of the assets, as follows:

 

Tooling and Molds    2 years
Furniture and fixtures    5 to 7 years
Computer equipment, software and other    3 to 5 years
Leasehold improvements    Lesser of useful life or term of lease

Impairment of Long-Lived Assets

The Company regularly reviews the carrying value and estimated lives of its long-lived assets, including property and equipment, to determine whether indicators of impairment may exist which warrant adjustments to carrying values or estimated useful lives. The determinants used for this evaluation include management’s estimate of the asset’s ability to generate positive income from operations and positive cash flow in future periods as well as the strategic significance of the asset to the Company’s business objectives. Should an impairment exist, the impairment loss would be measured based on the excess of the asset’s carrying amount over its fair value. The Company has not recognized any impairment losses during any of the years presented.

Goodwill and Intangible Assets

Goodwill represents the excess of the purchase price over the net amount of identifiable assets acquired and liabilities assumed in a business combination measured at fair value. The Company evaluates goodwill for impairment annually on October 1 of each year and upon the occurrence of triggering events or substantive changes in circumstances that could indicate a potential impairment by assessing qualitative factors or performing a quantitative analysis in determining whether it is more likely than not that the fair value of the net assets is below their carrying amounts.

Intangible assets acquired in a business combination are recognized separately from goodwill and are initially recognized at their fair value at the acquisition date. Intangible assets acquired include intellectual property (product design), customer relationships, and trade names. These are definite-lived assets and are amortized on a straight-line basis over their useful lives. Intangible assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying

 

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amount of the assets might not be recoverable. Conditions that would necessitate an impairment assessment include a significant decline in the observable market value of an asset, a significant change in the extent or manner in which an asset is used, or any other significant adverse change that would indicate that the carrying amount of an asset or group of assets may not be recoverable.

Operating Leases

The Company leases office and warehouse space under operating leases. Rent expense for the Company’s leases, which generally include rent abatements and escalations, is recorded on a straight-line basis over the term of the related lease. The lease term begins when the Company has the right to control the use of the property. Differences between rent expense and rent paid is recorded as deferred rent on the consolidated balance sheets. For certain leases we receive tenant improvement allowances and record those as deferred rent on the consolidated balance sheets and amortize the tenant improvement allowances on a straight-line basis over the lease term as a reduction of rent expense.

As a result of the ACON Acquisition, deferred rent balances as of October 30, 2015 were removed based on the determination that the lease obligations were comparable to current market rates. See Note 3, Acquisitions.

Contingent Consideration from Business Combination

At and subsequent to the acquisition date of a business combination, the Company measures contingent consideration obligations at fair value at each balance sheet date with changes in fair value recognized in the consolidated statements of operations. Changes in fair values reflect changes to the Company’s assumptions regarding probabilities of successful achievement of the earnings-based metrics, the timing of when the payment will be made, and the discount rate used to estimate the fair value of the obligation.

Equity-based Compensation

The Company measures and recognizes expense for its equity-based compensation granted to employees and directors based on the fair value of the awards on the grant date. The fair value of option awards is estimated at the grant date using the Black-Scholes option pricing model that requires management to apply judgment and make estimates, including:

Volatility —this is estimated based on historical volatilities of a representative group of publicly traded consumer product companies with similar characteristics

Risk-free interest rate —this is the U.S. Treasury rate as of the grant date having a term equal to the expected term of the award

Expected term —the expected term is calculated based on management’s estimate of the average time to a liquidity event

Dividend yield —the Company does not plan to pay dividends in the foreseeable future

Equity-based compensation expense is recognized on a straight-line basis over the vesting period of the award. The Company estimates that forfeitures will be immaterial, based on there being no historical forfeitures and based on employee turnover and expectations of future exercise behavior.

Revenue Recognition and Sales Allowance

Revenue from the sale of Company products is recognized when all of the following criteria are met: (1) persuasive evidence of an arrangement exists; (2) there are no uncertainties regarding

 

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customer acceptance; (3) the selling price is fixed or determinable; and (4) collectability is reasonably assured. The majority of revenue is recognized upon shipment of products.

The Company routinely enters into arrangements with its customers to provide sales incentives, and provides allowances for returns and defective merchandise. Such programs are based primarily on customer purchases and specified factors relating to sales to consumers. While the majority of sales adjustments are readily determinable at period end and do not require estimates, certain sales adjustments require management to make estimates. In making these estimates, management considers all available information, including the overall business environment, historical trends and information from customers. Sales incentives and allowances for returns and defective merchandise are recorded as sales adjustments and reduce revenue in the period the related revenue is recognized.

Amounts received prior to satisfying the revenue recognition criteria are recorded as deferred revenue on the consolidated balance sheets. Deferred revenue is classified as a current liability based on the expectation of recognition within 12 months following the date of each balance sheet. Sales terms do not allow for a right of return except in relation to a manufacturing defect.

Sales taxes collected on behalf of governmental authorities are recorded on a net basis and excluded from revenue.

Shipping Revenue and Costs

Shipping and handling costs include inbound freight costs and the cost to ship product to the customer and are included in cost of sales. Shipping costs billed to customers are included in net sales.

Advertising and Marketing Costs

Advertising and marketing costs are expensed when the advertising or marketing event takes place. These costs include the fees to participate in trade shows and Comic-Cons, as well as costs to develop promotional video and other online content created for advertising purposes. These costs are included in selling, general and administrative expenses and for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period were $6.8 million, $0.5 million and $3.3 million, respectively.

The Company enters into cooperative advertising arrangements with customers. The fees related to these arrangements are recorded as a reduction of net sales in the accompanying consolidated statements of operations because the Company has determined it does not receive an identifiable benefit and cannot reasonably estimate the fair value of these arrangements.

Product Design and Development Costs

Product design and development costs are recognized in selling, general and administrative expenses in the statements of operations as incurred. Product design and development costs for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period were $2.3 million, $0.3 million and $0.8 million, respectively.

Acquisition Transaction Costs

Acquisition transaction costs represent costs incurred by the Company in connection with potential acquisition targets and completed acquisitions.

 

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Contingencies

The Company is subject to various claims and contingencies related to lawsuits, insurance, regulatory, and other matters arising in the normal course of business. If potential loss is considered probable and the amount can be estimated, a liability is accrued.

Income Taxes

The Company is a limited liability company and is treated as a partnership for U.S. federal and most applicable state and local income tax purposes. As a result, the Company is not liable for U.S. federal or state and local income taxes in most jurisdictions in which it operates, and the income, expenses, gains and losses are reported on the returns of its members. The Company is subject to state and local income tax in certain jurisdictions in which it is not treated as a partnership, where it pays an immaterial amount.

Fair Value of Financial Instruments

The Company applies the accounting guidance related to fair value measurements. Fair value is the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value, the Company assumes the highest and best use of the asset by market participants in which the Company would transact and the market-based risk measurements or assumptions that market participants would use in pricing the asset or liability, such as inherent risk, transfer restrictions, and credit risk. The Company is required to disclose information on all financial instruments reported at fair value that enables an assessment of the inputs used in determining the reported fair values. The fair value hierarchy ranks the valuation inputs based on the observable nature of those inputs as follows:

Level 1—Quoted prices in an active market for identical assets or liabilities

Level 2—Quoted prices in an active market for similar assets or liabilities, inputs other than quoted prices that are observable for similar assets or liabilities, inputs derived principally from or corroborated by observable market data by correlation or other means

Level 3—Unobservable inputs that reflect the Company’s own assumptions about the assumptions market participants would use in pricing the asset or liability

The Company’s other financial instruments, in addition to those presented in Note 5, Fair Value Measurements, include accounts receivable, accounts payable, and accrued liabilities. The carrying amount of these financial instruments approximate fair value due to the short-term nature of these instruments.

Segment Reporting

The Company identifies its reportable segments according to how the business activities are managed and evaluated and for which discrete financial information is available and for which is regularly reviewed by our Chief Operating Decision Maker (the “CODM”) to allocate resources and assess performance. Because our CODM reviews financial performance and allocates resources at a consolidated level on a regular basis, the Company has one operating segment and one reportable segment.

Recent Accounting Pronouncements

In January 2017, the Financial Accounting Standards Board (“FASB”) issued an Accounting Standards Update (“ASU”) to simplify the test for goodwill impairment and removes step 2 from the goodwill impairment test. Early adoption is permitted, but will be effective for annual or any interim goodwill impairment tests for fiscal years beginning after December 15, 2019. Early adoption is

 

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permitted for interim or annual goodwill impairment tests performed after January 1, 2017. The Company is currently evaluating the impact the adoption of this standard will have on the consolidated financial statements.

In January 2017, the FASB issued guidance that clarified the definition of a business to assist with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses and refines the definition of the term output. Early adoption is permitted but the guidance will be effective for annual periods beginning after December 15, 2017. The guidance is not expected to have an impact on the consolidated financial statements of the Company.

In March 2016, the FASB issued an ASU which simplifies various aspects of the accounting for share-based payments. The guidance requires companies to recognize excess tax benefits and deficiencies for share-based payments in the statement of operations when the awards vest or are settled and reflected in operating cash flows rather than recorded in equity and reported in financing cash flows. The guidance allows for the employer to withhold up to the maximum statutory tax rates in the applicable jurisdictions without triggering liability accounting. The guidance also allows for a policy election to account for forfeitures as they occur rather than on an estimated basis. The new standard is effective for fiscal years beginning after December 15, 2016. Early adoption is permitted. The Company is currently evaluating the impact this guidance will have on the consolidated financial statements.

In February 2016, the FASB issued guidance related to lease accounting to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. The new guidance requires lessees to recognize all leases with a term of more than 12 months as lease assets and lease liabilities. A modified retrospective transition approach is required for leases existing at, or entered into after, the earliest period presented. The new standard is effective for fiscal years beginning after December 15, 2018. Early adoption is permitted. The Company is evaluating the impact the adoption of this standard will have on the consolidated financial statements.

In July 2015, the FASB issued guidance simplifying the measurement of inventory. This standard requires entities that use inventory methods other than the last-in, first-out (“LIFO”) or retail inventory method to measure inventory at the lower of cost or net realizable value. The guidance is effective for the fiscal year beginning after December 15, 2016. The Company is currently evaluating the impact this standard will have on the consolidated financial statements.

In May 2014, the FASB issued a comprehensive new revenue recognition standard. The new standard allows for a full retrospective approach to transition or a modified retrospective approach. This guidance is effective for fiscal years beginning after December 15, 2017. Some limited early adoption is permitted. The Company is currently evaluating the method of adoption it plans to use and the effect the standard is expected to have on the consolidated financial statements.

Recently Adopted Accounting Standards

In April 2015, the FASB issued guidance about a customer’s accounting for fees paid in a cloud computing arrangement. If a cloud computing arrangement includes a software license, then the customer should account for the software license element of the arrangement consistent with the acquisition of other software licenses. If the arrangement does not include a software license, the customer should account for the arrangement as a service contract. The Company adopted this guidance on a prospective basis for the year ended December 31, 2016. The adoption of this standard did not have a material impact on the Company’s consolidated financial statements.

In April 2015, the FASB issued new guidance which required the reclassification of debt issuance costs as a deduction from long-term debt on the consolidated balance sheets. The Company adopted

 

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this guidance for the year ended December 31, 2015, with full retrospective application, as required. The adoption only affects the presentation of the Company’s consolidated balance sheet.

In August 2014, the FASB issued new guidance which requires management to perform interim and annual assessments of an entity’s ability to continue as a going concern within one year and to provide certain footnote disclosures if there is substantial doubt about an entity’s ability to continue as a going concern. The Company adopted this standard for the year ended December 31, 2016.

3. Acquisitions

Acquisition of Funko Holdings LLC

On October 30, 2015, FAH, LLC acquired a controlling interest in FHL for $292.6 million in cash and $130.0 million in equity and options.

In connection with the ACON Acquisition, the Company also agreed to pay additional consideration of up to $40.0 million and $25.0 million in cash, if Adjusted EBITDA, as defined in the terms of the acquisition agreement, exceeded certain thresholds for the years ended December 31, 2015 and 2016, respectively.

Transaction costs incurred by the Company and by the Predecessor were $7.6 million and $13.3 million for the Successor 2015 Period and the Predecessor 2015 Period, respectively, and are recorded within acquisition transaction costs in the consolidated statements of operations. The elements of the purchase consideration are as follows (in thousands):

 

Cash paid

   $ 291,689  

Working capital adjustment to be paid in cash

     903  

Fair value of Class A units issued

     128,180  

Fair value of options for Class A units issued

     1,168  

Fair value of HR units issued

     649  

Fair value of contingent consideration

     54,900  
  

 

 

 

Total consideration

   $ 477,489  
  

 

 

 

The allocation of the purchase price is based on estimates of the fair value of assets acquired and liabilities assumed as of the acquisition date. The components of the purchase price allocation are as follows (in thousands):

 

Net working capital

   $ 108,983  

Property and equipment

     12,155  

Intellectual property

     114,411  

Customer relationships

     63,129  

Trade names

     81,358  

Goodwill

     97,453  
  

 

 

 

Total consideration transferred

   $ 477,489  
  

 

 

 

The acquisition was accounted for using the acquisition method of accounting. The Company’s consolidated financial statements reflect the final allocation of the purchase prices to the assets and liabilities assumed based on fair value as of the date of the acquisition.

In connection with the ACON Acquisition, the Predecessor extinguished its financing arrangements upon the acquisition by the Company. As a result, the opening balance sheet excluded the Predecessor’s $26.8 million line of credit, $21.5 million of notes payable to a related party, a $1.0 million term loan and $0.3 million in accrued interest.

 

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It was determined that the book value of the identifiable assets and liabilities included within net working capital, excluding inventory, and of property and equipment was representative of the fair value. The fair values assigned to inventory were based on the cost approach which required an estimation of gross margin that would be earned upon the sale of the inventory, costs to sell the product and operating margin. The fair value of the inventory was determined to be $59.9 million, an increase of $22.1 million to the book value. This increased cost of sales by $8.7 million during the Successor 2015 Period and $13.4 million during the year ended December 31, 2016 when all of the purchased inventory was sold.

Purchase consideration included an obligation to make an additional cash payment of $40.0 million for exceeding an Adjusted EBITDA threshold during the year ended December 31, 2015, and $25.0 million for exceeding an Adjusted EBITDA threshold during the year ended December 31, 2016. The fair value of this contingent consideration was based on an assessment of the likelihood and timing of payment and a discount rate of 15.7%, as determined at the date of acquisition. The discount rate captures the credit risk associated with the payment of the contingent consideration when earned and due. The Company achieved the Adjusted EBITDA threshold requiring payment of the $40.0 million. The Company’s majority owner was required to contribute $15.0 million to the Company in exchange for 15,000 Class A Units at the time this liability was paid. At the time of the acquisition, this obligation was recorded at fair value of $9.4 million within Members’ Equity. The estimated fair value was based on the difference between the fair value of the Class A Units and the contractual purchase price, discounted at the risk-free rate corresponding to the time to maturity. Upon receiving the $15.0 million, the Company issued 15,000 Class A Units to the majority owner and made the required $40.0 million payment.

The fair value of the acquired intellectual property has been estimated using the multi-period excess earnings model. This method discounts the amount of excess cash flows generated by the asset. The fair value of the trade names was estimated using the relief-from-royalty method which required that the Company estimate hypothetical royalty payments that would be required over the economic life of the asset as if it were to be licensed instead of purchased. These payments were then discounted to their present value. The fair value of the customer relationships was estimated using the distributor method, which incorporates a market-based margin to differentiate the value contributed by a relationship with a customer, as opposed to the value provided by the unique product design and branding. The Company has determined the useful life of these assets to be between two and 20 years and amortizes the value of the assets on a straight-line basis over this period. The excess of the purchase price over the estimated fair value of assets and liabilities assumed was recorded as goodwill and represents the estimated future economic benefits primarily attributed to the Company’s strategy of growth and expansion to global markets.

As a result of the ACON Acquisition, options to purchase 800,000 common units granted by the Predecessor were extinguished. Of these, options to purchase 688,309 common units were exercised and settled, while options to purchase 111,691 common units were replaced with 3,450 Class A Units of the Company. Of the total $21.7 million fair value recorded for option holders at the time of the ACON Acquisition, $16.8 million was attributable to service during the Predecessor 2015 Period and was included as part of the purchase consideration. The remaining $4.9 million was attributable to the replacement options and was treated as post-acquisition compensation expense and is expensed over the vesting period of those options in the Successor 2015 Period.

Purchase consideration included the issuance of 78,760 Class A Units, 1,461 options to purchase Class A Units, and 11,724 HR Units, all of which are defined within Note 11, Members’ Equity. The fair value of the Class A Units and options was determined to be $129.3 million. The fair value of the HR Units was determined to be $0.6 million. The fair value of these equity units issued as purchase consideration are recorded within Members’ Equity.

 

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Acquisition of Flophouse, LLC

On March 18, 2015, the Predecessor entered into an acquisition agreement providing for the purchase of Flophouse, LLC, an apparel design company. The Predecessor paid purchase consideration of $0.9 million in cash. The fair value of assets acquired and liabilities assumed was de minimis. The purchase price was allocated to goodwill which was attributable to the advancement of the Predecessor’s ability to operate within the apparel market.

4. Goodwill and Intangible Assets

As of December 31, 2016 and 2015, intangible assets, net was composed of the following (in thousands):

 

     December 31, 2016  
     Gross
Carrying
Amount
     Accumulated
Amortization
    Intangible
Assets,
Net
 

Intangible assets subject to amortization

 

    

Intellectual property

   $ 114,411      $ (6,674   $ 107,737  

Trade names

     81,358        (4,746     76,612  

Customer relationships

     63,129        (3,682     59,447  
  

 

 

    

 

 

   

 

 

 

Balance as of December 31, 2016

   $ 258,898      $ (15,102   $ 243,796  
  

 

 

    

 

 

   

 

 

 

 

     December 31, 2015  
     Gross
Carrying
Amount
     Accumulated
Amortization
    Intangible
Assets,
Net
 

Intangible assets subject to amortization

 

    

Intellectual property

   $ 114,411      $ (953   $ 113,458  

Trade names

     81,358        (678     80,680  

Customer relationships

     63,129        (526     62,603  
  

 

 

    

 

 

   

 

 

 

Balance as of December 31, 2015

   $ 258,898      $ (2,157   $ 256,741  
  

 

 

    

 

 

   

 

 

 

For the year ended December 31, 2016, the Successor 2015 Period, and the Predecessor 2015 Period, amortization of intangible assets was $12.9 million, $2.2 million, and $1.4 million, respectively. Estimated amortization expense will be $12.9 million for each of the next five years.

There was no impairment of goodwill and intangible assets for the year ended December 31, 2016 or for the Successor 2015 Period and the Predecessor 2015 Period.

5. Fair Value Measurements

The Company recorded $54.9 million in contingent consideration at the time of the ACON Acquisition. As of December 31, 2016 and 2015, the fair value of the contingent consideration was $25.0 million and $57.3 million, respectively. The decrease in the consideration in 2016 reflects the payment of $40.0 million made during the year ended December 31, 2016. Fair value is measured using the discounted cash flow method and based on assumptions the Company believes would be made by a market participant. The significant unobservable inputs are probabilities of successful achievement of the EBITDA threshold that would trigger contingent purchase consideration in the ACON Acquisition, the timing of when the payments will be made, and the discount rate of 3.5% and 15.7% as of December 31, 2016 and 2015, respectively. Significant changes to these assumptions would result in a significantly lower or higher fair value measurement. The valuation represents a Level 3 measurement within the fair value hierarchy.

 

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The following table sets forth the fair value and a summary of changes to the fair value of these Level 3 financial liabilities (in thousands):

 

     Contingent
Consideration
 

Balance as of October 31, 2015

   $ 54,900  

Changes in fair value

     2,442  
  

 

 

 

Balance as of December 31, 2015

     57,342  

Payments

     (40,903

Changes in fair value

     8,561  
  

 

 

 

Balance as of December 31, 2016

   $ 25,000  
  

 

 

 

Changes in fair value are recorded within selling, general and administrative expenses in the consolidated statements of operations.

6. Property and Equipment, Net

Property and equipment, net consisted of the following (in thousands):

 

     December 31,  
     2016     2015  

Tooling and Molds

   $ 28,942     $ 17,896  

Leasehold improvements

     4,970       2,420  

Computer equipment, software, and other

     2,346       1,335  

Furniture, fixtures, and warehouse equipment

     4,220       2,498  

Construction in progress

     5,452       1,068  
  

 

 

   

 

 

 
     45,930       25,217  

Less: Accumulated depreciation

     (20,457     (9,893
  

 

 

   

 

 

 

Total property and equipment, net

   $ 25,473     $ 15,324  
  

 

 

   

 

 

 

Depreciation expense for the year ended December 31, 2016, the Successor 2015 Period and Predecessor 2015 Period, was $10.6 million, $1.2 million, and $4.3 million, respectively.

7. Accounts Receivable, Net

Accounts receivable, net consisted of the following (in thousands):

 

     December 31,  
     2016     2015  

Accounts receivable

   $ 86,342     $ 48,147  

Less: Allowance for doubtful accounts

     (2,735     (205
  

 

 

   

 

 

 

Accounts receivable, net

   $ 83,607     $ 47,942  
  

 

 

   

 

 

 

Accounts receivable includes a $2.0 million tenant improvement receivable from a lessor. The remaining balance is customer receivables. Bad debt expense was $2.7 million for the year ended December 31, 2016, and de minimis and $0.2 million for the Successor 2015 Period and the Predecessor 2015 Period, respectively.

 

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8. Prepaid Expenses and Other Current Assets

Prepaid expenses and other current assets consisted of the following (in thousands):

 

     December 31,  
     2016      2015  

Prepaid deposits for inventory and molds

   $ 10,473      $ 4,467  

Prepaid royalties, net

     6,903        6,851  

Other prepaid expenses and current assets

     1,664        1,050  
  

 

 

    

 

 

 

Total prepaid expenses and other current assets

   $ 19,040      $ 12,368  
  

 

 

    

 

 

 

9. Accrued Expenses and Other Current Liabilities

Accrued expenses and other current liabilities consisted of the following (in thousands):

 

     December 31,  
     2016      2015  

Accrued payroll and compensation

   $ 4,768      $ 2,524  

Deferred revenue

     3,754        2,951  

Accrued shipping costs

     2,811        1,719  

Accrued interest

     86        1,110  

Other current liabilities

     2,327        2,974  
  

 

 

    

 

 

 

Total accrued liabilities and other current liabilities

   $ 13,746      $ 11,278  
  

 

 

    

 

 

 

10. Line of Credit and Long-Term Debt

On October 30, 2015, the Company entered into a credit agreement which provided for a $175.0 million term loan facility (the “Term Loan A Facility”) and a revolving credit facility, including a $3.0 million subfacility for the issuance of letters of credit (the “Revolving Credit Facility” and, together with the Term Loan A Facility, the “Senior Secured Credit Facilities”).

On September 8, 2016, the Company entered into an amendment to the credit agreement which, among other things, increased borrowings under the Term Loan A Facility by $50.0 million and changed the interest rate applicable to the Revolving Credit Facility. Proceeds from the additional Term Loan A Facility borrowings were used to fund a $49.0 million special cash distribution to the holders of Class A Units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management.

Borrowings under the Term Loan A Facility accrue interest at an annual rate equal to, at the Company’s option, either (1) the Reference Rate plus a margin of 6.25%, or (2) the LIBOR Rate plus a margin of 7.25% (in each case, as such terms are defined in the credit agreement).

The Term Loan A Facility is payable in quarterly principal installments of $2.2 million per quarter. The remaining unpaid balance on the Term Loan A Facility, together with all accrued and unpaid interest, is due and payable on the earlier of October 30, 2021 and the date all commitments under the Revolving Credit Facility are terminated.

Borrowings under the Revolving Credit Facility accrue interest at a rate equal to the one-month LIBOR published in The Wall Street Journal plus a margin of 2.50% per year. The Company can borrow up to an amount equal to the lesser of (1) the Borrowing Base (as defined in the credit

 

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agreement), and (2) $80.0 million, subject to reduction by certain reserve amounts that may be established by the administrative agent from time to time. The Company is required to pay an unused line fee to the lenders under the Revolving Credit Facility in respect of the unutilized commitments thereunder at a rate of 0.375% per year.

The Senior Secured Credit Facilities also provide for an excess cash flow payment following the end of each fiscal year that requires the Company to prepay the outstanding principal amount of all loans under the Senior Secured Credit Facilities in an aggregate amount equal to 60% of excess cash flow for such fiscal year, subject to certain step-downs and other reductions based on the Company’s senior leverage ratio and the amount of certain voluntary prepayments. The Company did not make any excess cash flow prepayments for the year ended December 31, 2016.

The Senior Secured Credit Facilities are collateralized by substantially all of the assets of, and the equity interests held by, the borrowers and any subsidiary guarantor that may become party to the credit agreement in the future, subject to certain exceptions. The Senior Secured Credit Facilities also contain certain financial and restrictive covenants. As of December 31, 2016, the Company was in compliance with all covenants under the Senior Secured Credit Facilities.

The Company paid $5.3 million and $1.5 million in fees to the lenders in connection with the Term Loan A Facility and the Revolving Credit Facility. An additional $2.4 million in fees were paid in connection with the First Amendment. The $1.5 million in fees paid in connection with the Revolving Credit Facility was capitalized as an asset and is amortized over the life of the credit agreement. The capitalized fees were $1.2 million and $1.5 million as of December 31, 2016 and 2015, respectively. The $5.3 million and the $2.4 million in fees paid in connection with the Term Loan A Facility were recorded as a discount to the Term Loan A Facility and are accreted using the effective interest rate method. As of December 31, 2016 and 2015, the unamortized discount was $6.4 million and $5.2 million, respectively.

As of December 31, 2016, the outstanding principal balance of the Term Loan A Facility was $217.4 million, with an effective interest rate of 8.93% per year. As of December 31, 2015, the outstanding principal balance of the Term Loan A Facility was $175.0 million, with an effective interest rate of 8.81% per year. Term debt, net of discount, was $211.0 million and $169.8 million as of December 31, 2016 and 2015, respectively.

The Company had $6.7 million of borrowings under the Revolving Credit Facility as of December 31, 2016, and no borrowings under the Revolving Credit Facility as of December 31, 2015. There were no outstanding letters of credit as of December 31, 2016 and 2015.

As of December 31, 2016 and 2015, the fair value of debt was $196.3 million and $172.4 million, respectively. The valuation of debt is performed using the discounted cash flow methodology and requires that management estimate a discount rate, using inputs observable in the market. Management’s estimate of the discount rate as of December 31, 2016 and 2015 was 11.0% and 8.6%, respectively.

11. Members’ Equity

Class A Units

The Company is authorized to issue an unlimited number of Class A Units with a par value of $1,000, and an 8% preferred return. During the year ended December 31, 2016, the Company issued 15,000 Class A Units for $15.0 million to the Company’s majority owner.

 

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Common Units

The Company is authorized to issue 12,500 and 10,000 Common Units with $0 par value as of December 31, 2016 and 2015, respectively. The increase in the number of authorized common units was the result of an amendment to the Company’s LLC agreement on December 29, 2016. As of December 31, 2016, 11,578 common units were outstanding, of which 9,651 common units were subject to vesting requirements. As of December 31, 2015, 7,500 common units were outstanding, of which all were subject to vesting requirements.

Senior Preferred Units (“SP Units”)

The Company is authorized to issue SP Units only if the board of directors has determined that the Company lacks sufficient cash flow to pay its contingent liability obligations in cash. No SP Units were authorized or outstanding as of December 31, 2016 and 2015, respectively.

Home Run Units (“HR Units”)

The Company is authorized to issue 11,724 HR Units with $0 par value, all of which were outstanding as of December 31, 2016 and 2015.

In the event of any liquidation event, secured creditors to the extent permitted by law shall be entitled to receive reasonable provisions for payment of outstanding debt and liabilities. Second to the secured creditors, holders of SP Units, if any, will be entitled to receive payment in accordance with their aggregate SP preferred return and unreturned capital. Third, holders of Class A Units will receive their cumulative preferred return and unreturned capital. Fourth, a range of between 5% and 10% is distributed to the holders of common units, depending upon thresholds of return to the Company’s majority owner, with the remaining capital distributed to the holders of Class A Units. Finally, upon reaching the last threshold of return for the majority owner, 85.5%, 10%, and 4.5% is distributed to the holders of Class A Units, common units, and HR Units, respectively.

12. Equity-Based Compensation

Equity Incentive Plans

Funko Holdings, LLC maintained and granted option awards under the 2013 Option Plan (the “2013 Plan”). The 2013 Plan was terminated in conjunction with the ACON Acquisition.

Effective October 30, 2015, the Company’s LLC agreement allows for the issuance of common units to employees, officers, directors, consultants, and other such service providers to the Company. The number of awards and the terms, including vesting requirements, are subject to the approval of the board of directors. The board must also establish a distribution threshold for each award of common units in order to maintain the units as profits interests. As of December 31, 2016 and 2015, the total number of common units available for issuance as future awards was 922 and 2,500, respectively. Generally, awards granted by the Company under the LLC agreement vest over four years.

The board of directors may adopt option plans so that it may grant options to acquire Class A or common units. In addition, the Company currently sponsors the FAH, LLC 2015 Option Plan (the “2015 Option Plan”), pursuant to which certain of the Company’s employees were granted options to purchase Class A Units in FAH, LLC. As of December 31, 2016, 3,450 Class A Units were reserved for issuance under the 2015 Option Plan.

 

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Common Units

Equity-based compensation expense is recognized in the consolidated statements of operations as follows (in thousands):

 

          

Successor

                  Predecessor  
           Year Ended
December 31, 2016
    Period from
October 31, 2015 through
December 31, 2015
                  Period from
January 1, 2015 through
October 30, 2015
 

Selling, general, and administrative expenses

     $ 2,369     $ 4,484             $ 9,925  

As of December 31, 2016, there was $9.2 million of total unrecognized equity-based compensation expense. Of this, $0.5 million is related to options to purchase Class A Units and $8.7 million is related to unvested common units. As of December 31, 2016, the Company expected to recognize these costs over a remaining weighted average period of 2.0 years for options and 3.2 years for common units.

A summary of the Company’s common units activity is as follows:

 

     Units     Weighted Average
Fair Value at Date
of Grant per Unit
 

Unvested units as of October 30, 2015

         $  

Granted

     7,500       1,117  
  

 

 

   

Unvested units as of December 31, 2015

     7,500       1,117  

Granted

     4,078       670  

Vested

     (1,927     1,105  
  

 

 

   

Unvested units as of December 31, 2016

     9,651       931  
  

 

 

   

The fair value of common units is determined as of the grant date. The Company uses the income and market approaches to estimate the fair value of the Company’s equity. These methodologies are based on discounted projected cash flows, the cost of equity, the cost of debt, a selection of guideline public companies, and valuation multiples to apply to those companies. The fair value of the common units is based on the allocation of total equity using the Black Scholes model and the following assumptions:

 

     Year Ended
December 31,
2016
    Period from
October 31,
2015 through
December 31,
2015
 

Risk free interest rate

     0.83     1.05

Expected volatility

     49     37

Expected life (years)

     2.6       3.0  

Expected dividend yield

     0     0

The expected life is based on estimates of the likely timing of a liquidity event. A discount for lack of marketability of 20% is subtracted from the fair value for the valuation of common units issued during the year ended December 31, 2016. Management estimates expected forfeitures and recognizes compensation cost only for those awards expected to vest.

 

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Options to Purchase Class A Units

A summary of the Company’s equity-based option activity is as follows:

 

    Number of Options
for Class A Units
    Weighted
Average
Exercise Price
per Unit
    Weighted
Average
Remaining
Contractual Life
(in years)
    Aggregate
Intrinsic Value
(in thousands)
 

Predecessor

       

Outstanding as of December 31, 2014

    321,000     $ 0.25      

Granted

    479,000       6.94      

Exercised

    (688,309     4.26      

Cancelled

    (111,691     4.26      
 

 

 

       

Outstanding as of October 30, 2015

                    $  
 

 

 

       

Successor

       

Granted

    3,450       66.76      
 

 

 

       

Outstanding as of December 31, 2015

    3,450       66.76       7.92       2,526  
 

 

 

       

Outstanding as of December 31, 2016

    3,450       66.76       6.92       1,815  
 

 

 

       

Exercisable as of December 31, 2015

    2,506       8.02       7.50       1,982  
 

 

 

       

Exercisable as of December 31, 2016

    2,951       40.42       6.73       1,631  
 

 

 

       

The fair value of the options awarded during the Predecessor 2015 Period was determined using the Black-Scholes option pricing model using a risk-free interest rate of 1.44% to 1.57%, volatility of 45%, estimated life of six years, and no expected dividends.

The fair value of the options to purchase 3,450 Class A Units granted during the Successor 2015 Period was based on the amount of consideration provided to option holders, less the value attributed to vesting occurring in the Predecessor 2015 Period. See Note 3, Acquisitions.

The weighted average grant date fair value of options granted during the Successor 2015 Period and the Predecessor 2015 Period was $2,697 per common unit and $21 per common unit, respectively. The intrinsic value of options exercised during the Predecessor 2015 Period was $18.3 million.

13. Commitments and Contingencies

The following table summarizes the Company’s future minimum commitments as of December 31, 2016 (in thousands):

 

    Year ended December 31,              
    2017     2018     2019     2020     2021     Thereafter     Total  

Long-term debt and related interest

  $ 26,513     $ 25,794     $ 25,074     $ 24,399     $ 195,568     $     $ 297,348  

Operating leases

    4,760       4,839       4,445       4,642       4,007       14,943       37,636  

Minimum royalty obligations

    7,690       12,384       200                         20,274  

Revolving Credit Facility

    6,729                                     6,729  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total commitments

  $ 45,692     $ 43,017     $ 29,719     $ 29,041     $ 199,575     $ 14,943     $ 361,987  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Debt

The Company has entered into a credit agreement which includes a term loan facility and a revolving credit facility. The minimum interest rate included in the above table is 8.25%. See Note 10, Line of Credit and Long-Term Debt.

Leases

The Company has entered into non-cancellable operating leases for office, warehouse, and distribution facilities, with original lease periods expiring through 2027. Some operating leases also contain the option to renew for five-year periods at prevailing market rates at the time of renewal. In addition to minimum rent, certain of the leases require payment of real estate taxes, insurance, common area maintenance charges, and other executory costs. These executory costs are not included in the above table.

Rent expense for the year ended December 31, 2016, the Successor 2015 Period and the Predecessor 2015 Period was $3.7 million, $0.3 million and $1.2 million, respectively. Rent expense is recorded within selling, general and administrative expenses.

License Agreements

The Company enters into license agreements with various licensors of copyrighted and trademarked characters and design in connection with the products that the Company sells. The agreements generally require royalty payments based on product sales and in some cases may require minimum royalty and other related commitments.

Legal Contingencies

The Company may become involved in claims and litigation in the ordinary course of business. At this time, the Company does not believe that any of these claims will result, individually or in the aggregate, in a material adverse effect upon its financial condition or future results of operations.

14. Employee Benefit Plan

In October 2016, the Company adopted a 401(k) retirement and savings plan (the “401(k) Plan”) covering eligible employees. The 401(k) Plan allows employees and partners of the Company to make pre- and post-tax contributions up to the maximum allowable amount set by the IRS. The Company makes contributions to the 401(k) Plan on behalf of participants on a dollar-for-dollar match basis, up to 4% of a participant’s earnings. The contributions made by employees, partners and the Company are immediately 100% vested. As of December 31, 2016, the Company had contributed $0.2 million to the 401(k) Plan. Of this amount, $0.1 million is accrued within accrued payroll and compensation on the consolidated balance sheet as of December 31, 2016.

15. Related-Party Transactions

On October 31, 2015, the Company entered into a management services agreement with ACON Equity Management, L.L.C. (“ACON Equity Management”), which requires payment of a monitoring fee equal to the greater of (1) $500,000 and (2) 2% prior year Adjusted EBITDA, up to a maximum fee of $2.0 million. Pursuant to the management services agreement, Funko, LLC also agreed to pay ACON Equity Management a one-time advisory fee of $2.0 million, and agreed to reimburse ACON Equity Management for certain costs and expenses in connection with ACON Equity Management’s performance under the agreement. The management services agreement has an initial term of ten

 

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years, and is automatically renewable thereafter, provided that the agreement will terminate automatically immediately prior to the consummation of any sale transaction, in which case ACON Equity Management is entitled to receive an accelerated monitoring fee in an amount equal to the then-current monitoring fee payable for the lesser of three years and the remainder of the agreement’s initial ten-year term.

The Company has recognized $1.5 million and $0.3 million in fees for the year ended December 31, 2016 and the Successor 2015 Period, respectively. These fees are recorded within selling, general and administrative expenses. As of December 31, 2016 and 2015, $0.4 million and $0.3 million of these fees, respectively, were included within accrued expenses and other current liabilities. In addition, the Company recorded an expense for ACON Equity Management’s reimbursable expenses totaling $0.2 million and $0.0 million for the year ended December 31, 2016 and the Successor 2015 Period, respectively.

On October 31, 2015, the Company entered into subscription agreements with several members of management (the “Purchasers”) to purchase Class A Units of FAH, LLC having an aggregate purchase price of $0.9 million. Funko, LLC entered into a secured promissory note with each Purchaser in an amount equal to the purchase price of the Class A Units purchased by such individual. Amounts outstanding under the promissory notes are collateralized by all direct or indirect ownership interests of the Purchasers in FAH, LLC. The promissory notes have a ten-year term and an 8% interest rate compounded on an annual basis. The promissory notes were recorded as a non-cash transaction within equity. The Company recognizes interest on a cash basis when principal payments are made, and has recorded a nominal amount of interest income for the year ended December 31, 2016. No interest income was recognized for the Successor 2015 Period.

On October 30, 2015, the Predecessor repaid $21.5 million in aggregate principal amount of senior subordinated notes payable to related parties . The Predecessor recorded $1.5 million of interest expense in the Predecessor 2015 Period in relation to such senior subordinated notes.

The professional services agreement also provided that Funko, LLC would reimburse Fundamental Capital for certain expenses incurred in connection with the rendering of services thereunder. The Predecessor recorded $3.3 million of management fees within selling, general and administrative expense for the Predecessor 2015 Period. The professional services agreement was terminated at the time of the ACON Acquisition on October 30, 2015.

16. Segment Information

The Company has one reportable segment. The following table is a summary of product

categories as a percent of net sales:

 

     Successor           Predecessor  
     Year Ended
December 31,
2016
    Period from
October 31, 2015
through
December 31,
2015
          Period from
January 1, 2015
through
October 30,
2015
 

Figures

     82.0     88.6         91.1

Plush

     6.0       2.2           2.9  

Accessories

     5.2       4.9           4.1  

Other

     6.8       4.3           1.9  

 

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The following tables present summarized geographical information (in thousands):

 

     Successor           Predecessor  
     Year Ended
December 31,
2016
     Period from
October 31, 2015
through
December 31,
2015
          Period from
January 1, 2015
through
October 30,
2015
 

Net sales:

         

United States

   $ 352,436      $ 40,906       $ 170,239  

Foreign

     74,281        15,659         47,252  
  

 

 

    

 

 

     

 

 

 

Total net sales

   $ 426,717      $ 56,565       $ 217,491  
  

 

 

    

 

 

     

 

 

 

 

     December 31,  
     2016      2015  

Long-lived assets:

     

United States

   $ 14,773      $ 8,760  

China and Vietnam

     13,791        8,026  
  

 

 

    

 

 

 

Total long-lived assets

   $ 28,564      $ 16,786  
  

 

 

    

 

 

 

17. Subsequent Events—Unaudited

Management has evaluated subsequent events through April 28, 2017, the date the financial statements were available to be issued.

In January 2017, FAH, LLC, FHL and Funko, LLC entered into an amendment to the Company’s credit agreement which provided for, among other things, an additional $50.0 million term loan facility (the “Term Loan B Facility”) and an increase in commitments under the Revolving Credit Facility to $80.0 million. Borrowings under the Term Loan B Facility accrue interest at an annual rate equal to, at the Company’s option, either (1) the Reference Rate (as defined in the credit agreement) plus a margin of 9.00% per year, or (2) the LIBOR Rate plus a margin of 10.00% per year. The Term Loan B Facility is payable in monthly installments of $1.0 million per month; provided that the Company may forego any installment payment due with respect to the Term Loan B Facility on or prior to December 31, 2017 upon compliance with certain conditions. The remaining unpaid balance on the Term Loan B Facility, together with all accrued and unpaid interest, is due and payable on the earlier of October 30, 2021 and the date all commitments under the Revolving Credit Facility are terminated. Proceeds from the Term Loan B Facility were used to fund a $49.0 million special cash distribution to the holders of Class A Units of FAH, LLC, $0.8 million in cash bonus payments to certain of our executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management. In conjunction with this amendment, the Company issued the lenders warrants to purchase 1,774 Class A Units and 94 Common Units of FAH, LLC, the impact of which the Company is currently evaluating.

In January 2017, the Company acquired certain assets of Underground Toys Limited which primarily consisted of inventory and identifiable intangible assets. Purchase consideration included $12.6 million in cash, the issuance of $2.0 million in Class A Units, and an additional payment in cash of up to $3.3 million contingent upon the assignment of certain license agreements. This asset acquisition did not have a material impact on the Company’s statement of operations. For the year ended December 31, 2016, we recognized net sales of $35.0 million and had $14.7 million of accounts receivable attributable to Underground Toys Limited.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Condensed Consolidated Balance Sheets

(in thousands, except share amounts)

 

     June 30,     December 31,  
     2017     2016  
     (unaudited)        
Assets  

Current assets:

    

Cash and cash equivalents

   $ 12,752     $ 6,161  

Accounts receivable, net

     81,629       83,607  

Inventory

     57,982       43,616  

Prepaid expenses and other current assets

     31,573       19,040  
  

 

 

   

 

 

 

Total current assets

     183,936       152,424  

Property and equipment, net

     35,639       25,473  

Goodwill

     106,521       97,453  

Intangible assets, net

     257,991       243,796  

Other assets

     4,293       3,091  
  

 

 

   

 

 

 

Total assets

   $ 588,380     $ 522,237  
  

 

 

   

 

 

 
Liabilities and Members’ Equity  

Current liabilities:

    

Line of credit

   $ 51,054     $ 6,729  

Current portion long-term debt, net of unamortized discount

     16,451       7,130  

Accounts payable

     45,043       23,653  

Accrued royalties

     16,297       21,284  

Accrued expenses and other current liabilities

     27,044       13,746  

Current portion of contingent consideration

     2,478       25,000  
  

 

 

   

 

 

 

Total current liabilities

     158,367       97,542  

Long-term debt, net of unamortized discount

     271,559       203,894  

Deferred rent

     3,464       3,424  

Commitments and contingencies

    

Members’ equity:

    

Class A units, $1,000 par value; unlimited units authorized; 225,871 units and 219,311 units issued and outstanding at June 30, 2017 and December 31, 2016 respectively

     225,871       219,311  

Common units, no par value; 12,500 units authorized; 11,724 units and 11,578 units issued and outstanding at June 30, 2017 and December 31, 2016, respectively

            

Senior Preferred units, $1,000 par value; no units authorized, issued, and outstanding at June 30, 2017 and December 31, 2016

            

Home Run units, no par value; 11,724 units authorized; 11,724 units issued and outstanding at June 30, 2017 and December 31, 2016

            

Additional paid-in-capital

     65,588       58,090  

Accumulated other comprehensive income

     771        

Accumulated deficit

     (137,240     (60,024
  

 

 

   

 

 

 

Total members’ equity

     154,990       217,377  
  

 

 

   

 

 

 

Total liabilities and members’ equity

   $ 588,380     $ 522,237  
  

 

 

   

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Condensed Consolidated Statements of Operations

(in thousands)

(Unaudited)

 

     Six Months Ended June 30,  
     2017     2016  

Net sales

   $ 203,798     $ 176,261  

Cost of sales (exclusive of depreciation and amortization shown separately below)

     130,066       125,799  

Selling, general, and administrative expenses

     50,901       37,087  

Acquisition transaction costs

     3,086       349  

Depreciation and amortization

     14,322       11,174  
  

 

 

   

 

 

 

Total operating expenses

     198,375       174,409  
  

 

 

   

 

 

 

Income from operations

     5,423       1,852  

Interest expense, net

     14,677       7,879  

Other (income) expense, net

     (113      
  

 

 

   

 

 

 

Loss before income taxes

     (9,141     (6,027

Income tax expense

     1,024        
  

 

 

   

 

 

 

Net loss

   $ (10,165   $ (6,027
  

 

 

   

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Condensed Consolidated Statements of Comprehensive Income (Loss)

(in thousands)

(Unaudited)

 

     Six Months Ended June 30,  
     2017     2016  

Net loss

   $ (10,165   $ (6,027
  

 

 

   

 

 

 

Other comprehensive income, net of tax:

    

Foreign currency translation

     771        
  

 

 

   

 

 

 

Other comprehensive income

     771        
  

 

 

   

 

 

 

Comprehensive loss

   $ (9,394   $ (6,027
  

 

 

   

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Condensed Consolidated Statements of Members’ Equity

(in thousands)

(Unaudited)

 

    Class A Units     HR Units     Common
Units
    Recourse
Loans To
Management
    Accumulated
Other
Comprehensive
Income (Loss)
    Undistributed
Earnings
(Accumulated
Deficit)
    Total  
    Units     Amounts     Units     Amounts     Units     Amounts          

Period ended December 31, 2016

    219     $ 274,343       12     $ 649       12     $ 2,409     $ (773   $     $ (59,251   $ 217,377  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Equity issued in connection with acquisition

    2       5,313                     5,313  

Warrants issued in connection with long-term debt

                    5,726       5,726  

Equity-based compensation

      2,328             1,417             3,745  

Net loss

                    (10,165     (10,165

Cumulative translation adjustment

                  771         771  

Recourse loans to management

                188           188  

Contributions from members

    5       5,000                     5,000  

Distribution to members

                    (72,965     (72,965
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Period ended June 30, 2017

    226     $ 286,984       12     $ 649       12     $ 3,826     $ (585   $ 771     $ (136,655   $ 154,990  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Condensed Consolidated Statements of Cash Flows

(in thousands)

(Unaudited)

 

     Six Months Ended
June 30,
 
     2017     2016  

Operating Activities

    

Net loss

   $ (10,165   $ (6,027

Adjustments to reconcile net loss to net cash provided by operating activities:

    

Depreciation and amortization

     14,322       11,174  

Equity-based compensation

     3,745       1,167  

Contingent consideration

     8       6,631  

Accretion of discount on long-term debt

     2,203       491  

Amortization of debt issuance costs

     222       139  

Changes in operating assets and liabilities:

    

Accounts receivable, net

     5,283       (14,822

Inventory

     3,763       20,936  

Prepaid expenses and other assets

     (11,122     (3,129

Accounts payable

     8,640       (248

Accrued royalties

     (6,656     (1,807

Accrued expenses and other liabilities

     5,507       1,884  
  

 

 

   

 

 

 

Net cash provided by operating activities

     15,750       16,389  
  

 

 

   

 

 

 

Investing Activities

    

Purchase of property and equipment

     (18,321     (8,014

Acquisitions, net of cash

     (28,443      
  

 

 

   

 

 

 

Net cash used in investing activities

     (46,764     (8,014
  

 

 

   

 

 

 

Financing Activities

    

Borrowings on line of credit

     92,588       7,730  

Payments on line of credit

     (48,262     (2,395

Proceeds from long-term debt, net

     66,336        

Payment of long-term debt

     (7,300     (3,300

Proceeds from subordinated debt, net

     20,000        

Contingent consideration

     (17,958      

Contributions from members

     5,000       15,000  

Distribution to members

     (72,777     (13,696
  

 

 

   

 

 

 

Net cash provided by financing activities

     37,627       3,339  
  

 

 

   

 

 

 

Effect of exchange rates on cash and cash equivalents

     (22      

Net increase in cash and cash equivalents

     6,591       11,714  

Cash and cash equivalents at beginning of period

     6,161       24,411  
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 12,752     $ 36,125  
  

 

 

   

 

 

 

Supplemental Cash Flow Information

    

Cash paid for interest

   $ 12,172     $ 6,016  

Accrual for purchases of property and equipment

   $ 1,108     $  

Issuance of Class A units for acquisitions

   $ 5,313     $  

Issuance of warrants for Class A units in connection with long-term debt

   $ 5,061     $  

Issuance of warrants for common units in connection with long-term debt

   $ 665     $  

Reimbursement of management recourse loan

   $ 188     $  

See accompanying notes to condensed consolidated financial statements.

 

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Funko Acquisition Holdings, L.L.C. and Subsidiaries

Notes to Condensed Consolidated Financial Statements

(Unaudited)

1. Description of Business, Organization, and Basis of Presentation

Funko Acquisition Holdings, L.L.C. (together with its subsidiaries, the “Company” or “FAH, LLC”) is a Delaware limited liability company. The Company is headquartered in Everett, Washington and is a leading pop culture consumer products company. The Company designs, sources, and distributes licensed pop culture products across multiple categories, including figures, plush and accessories.

FAH, LLC is a holding company with no operating assets or operations and was formed on September 24, 2015. FAH, LLC owns 100% of Funko Holdings LLC, a Delaware limited liability company (“FHL”), which is also a holding company with no operating assets or operations, and which was formed on May 28, 2013. FHL owns 100% of Funko, LLC, a limited liability company formed in the state of Washington, which is the Company’s operating entity.

On October 30, 2015, ACON Funko Investors, L.L.C., through FAH, LLC, acquired a controlling interest in FHL and its subsidiary, Funko, LLC. This acquisition is referred to as the “ACON Acquisition”.

The accompanying consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) for interim financial information, but do not include all information and footnote disclosures required under U.S. GAAP for annual financial statements. In the opinion of management, the interim condensed consolidated financial statements include all adjustments, consisting only of normal recurring adjustments, necessary for the fair presentation of the Company’s financial position, results of operations and cash flows as of the dates and for the periods presented. All intercompany transactions and balances are eliminated in consolidation.

These interim financial statements should be read in conjunction with the Company’s audited consolidated financial statements and notes thereto as of and for the year ended December 31, 2016, which are included elsewhere in this Registration Statement on Form S-1. Interim results are not necessarily indicative of results for the full fiscal year due to seasonality and other factors.

The preparation of the Company’s condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements as well as the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates and assumptions.

2. Recently Adopted Accounting Standards

In March 2016, the FASB issued an ASU which simplifies various aspects of the accounting for share-based payments. The guidance requires companies to recognize excess tax benefits and deficiencies for share-based payments in the statement of operations when the awards vest or are settled and reflected in operating cash flows rather than recorded in equity and reported in financing cash flows. The guidance allows for the employer to withhold up to the maximum statutory tax rates in the applicable jurisdictions without triggering liability accounting. The guidance also allows for a policy election to account for forfeitures as they occur rather than on an estimated basis. The Company adopted the new standard effective January 1, 2017 and has elected to account for forfeitures as they occur. The adoption of this standard did not have a material impact on the Company’s unaudited consolidated financial statements.

 

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In September 2015, the FASB issued an ASU to simplify the accounting for adjustments made to provisional amounts recognized in a business combination. The guidance eliminates the requirement to retrospectively account for those adjustments and requires companies to recognize the adjustments to provisional amounts identified during the measurement period in the reporting period in which the adjustments are determined. The guidance is effective for fiscal years beginning after December 15, 2016, and interim periods within the fiscal years beginning after December 15, 2017. The Company adopted ASU 2015-16 in the first quarter of fiscal 2017.

In July 2015, the FASB issued guidance simplifying the measurement of inventory. This standard requires entities that use inventory methods other than the last-in, first-out (“LIFO”) or retail inventory method to measure inventory at the lower of cost or net realizable value. The Company adopted the new standard effective January 1, 2017. The adoption of this standard did not have a material impact on the Company’s unaudited consolidated financial statements.

3. Acquisitions

Acquisition of Equity Interests in Loungefly, LLC

On June 28, 2017, the Company acquired all of the outstanding equity interests of Loungefly, LLC, a designer of a variety of licensed pop culture fashion handbags, small leather goods and accessories (the “Loungefly Acquisition”). The initial purchase consideration included $17.9 million paid in cash, which included $1.8 million in transaction fees on behalf of the seller, and $2.1 million of Class A units in the Company.

The Loungefly Acquisition was accounted for using the acquisition method of accounting, which requires an acquirer to recognize assets acquired and liabilities assumed at the acquisition date fair values. The estimated fair value of the assets acquired and liabilities assumed is preliminary and differences between the preliminary and final estimated fair value could be material. The Company has made an initial allocation of the purchase price at the date of acquisition based upon its understanding of the fair value of the acquired assets and assumed liabilities. In the months after closing, as additional information is obtained about the assets and liabilities, including through tangible and intangible asset appraisals, and the Company learns more about the newly acquired business, the Company will be able to refine the estimate of fair value and more accurately allocate the purchase price. Only items identified as of the acquisition date are considered for subsequent adjustment. A valuation of certain tangible and acquired intangible assets in connection with the acquisition is in process. Appropriate adjustments to purchase price allocations prior to completion of the applicable measurement period may be made, as required.

The following table summarizes the estimates of fair value at the date of acquisition (in thousands):

 

Cash paid

   $ 16,113  

Transaction fees paid (incurred) on behalf of seller

     1,777  

Fair value of Class A Units issued

     2,131  
  

 

 

 

Total estimated purchase consideration

   $ 20,021  
  

 

 

 

 

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The allocation of the purchase price is based on estimates of the fair value of assets acquired and liabilities assumed as of the acquisition date. The components of the estimated purchase price allocation are as follows (in thousands):

 

Cash

   $ 1,501  

Accounts receivable

     3,305  

Inventory

     1,009  

Other current assets

     205  

Property and equipment

     183  

Intangible assets

     14,295  

Goodwill

     7,354  

Current liabilities

     (7,831
  

 

 

 

Total estimated consideration transferred

   $ 20,021  
  

 

 

 

The estimated goodwill created from the Loungefly Acquisition arose from a number of factors, including the future earnings and cash flow potential of the business, the multiple to earnings, cash flow and other factors at which similar businesses have been purchased by other acquirers, the competitive nature of the processes by which the Company acquired the business, the avoidance of the time and costs which would be required (and the associated risks that would be encountered) to enhance the Company’s existing offerings to key target markets and develop new and profitable businesses, and the complementary strategic fit and resulting synergies this business brings to existing operations.

The following table summarizes the estimated identifiable intangible assets acquired (in thousands) and their estimated useful lives (in years):

 

     Intangible
Assets
     Estimated
Useful Life
 

Customer relationships

   $ 960        10  

Licensor relationships

   $ 11,225        10  

Trade name

   $ 2,110        10  

Costs, such as advisory, legal, accounting fees and change of control fees, incurred by the Company related to the Loungefly Acquisition were $0.7 million for the six months ended June 30, 2017, and are recorded within acquisition transaction costs in the consolidated statements of operations.

The activity of Loungefly, LLC included in the Company’s condensed consolidated statements of operations from the acquisition date to June 30, 2017 was a nominal amount.

Acquisition of Certain Assets of Underground Toys Limited

On January 27, 2017, the Company acquired certain assets of Underground Toys Limited, a manufacturer and distributor of licensed products based in the United Kingdom (the “Underground Acquisition”). The acquired assets primarily consisted of inventory and identifiable intangible assets, which are now used by the Company’s newly formed subsidiary Funko UK, Ltd. Initial purchase consideration included $12.6 million in cash, the issuance of $3.2 million in Class A Units in the Company, and an additional payment in cash of up to $2.5 million contingent upon the assignment of certain license agreements and certain working capital adjustments estimated to be $1.8 million.

The acquisition was accounted for using the acquisition method of accounting, which requires an acquirer to recognize assets acquired and liabilities assumed at the acquisition date fair values. The estimated fair value of the assets acquired and liabilities assumed is preliminary and differences

 

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between the preliminary and final estimated fair value could be material. The Company made an initial allocation of the purchase price at the date of acquisition based upon its understanding of the fair value of the acquired assets and assumed liabilities. In the months after closing, as additional information is obtained about the assets and liabilities, including through tangible and intangible asset appraisals, and the Company learns more about the newly acquired business, the Company will be able to refine the estimate of fair value and more accurately allocate the purchase price. Only items identified as of the acquisition date are considered for subsequent adjustment. A valuation of certain tangible and acquired intangible assets in connection with the acquisition is in process. Appropriate adjustments to purchase price allocations prior to completion of the applicable measurement period may be made, as required. During the second quarter of 2017, the Company recorded certain adjustments to the working capital assumed, while no material adjustments are expected the purchase price allocation is not yet final as the Company is completing its analysis of the opening working capital balances and finalizing the valuation and related assumptions over the intangible assets acquired.

The following table summarizes the estimates of fair value at the date of acquisition (in thousands):

 

Cash paid

   $ 12,554  

Working capital adjustment to be paid in cash

     1,784  

Fair value of Class A Units issued

     3,182  

Fair value of contingent consideration

     2,470  
  

 

 

 

Total estimated purchase consideration

   $ 19,990  
  

 

 

 

The allocation of the purchase price is based on estimates of the fair value of assets acquired and liabilities assumed as of the acquisition date. The components of the estimated purchase price allocation are as follows (in thousands):

 

Inventory

   $ 16,600  

Other current assets

     1,122  

Property and equipment

     289  

Intangible assets

     6,500  

Goodwill

     1,662  

Current liabilities assumed

     (6,183
  

 

 

 

Total estimated consideration transferred

   $ 19,990  
  

 

 

 

The estimated goodwill resulting from the Underground Toys Acquisition was from a number of factors including the future earnings and cash flow potential of the business, the multiple to earnings, cash flow and other factors at which similar businesses have been purchased by other acquirers, the competitive nature of the processes by which the Company acquired the businesses, the avoidance of the time and costs which would be required (and the associated risks that would be encountered) to enhance the Company’s existing offerings to key target markets and develop new and profitable businesses, and the complementary strategic fit and resulting synergies this business brings to existing operations.

The following table summarizes the estimated identifiable intangible assets acquired (in thousands) and their estimated useful lives (in years):

 

     Intangible
Assets
     Estimated
Useful Life
 

Customer relationships

   $ 3,700        10  

Licensor relationships

     2,500        10  

Supplier relationships

     300        2  

 

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Prior to the Underground Toys Acquisition, for the six months ended June 30, 2016, the Company recognized net sales of $13.9 million to Underground Toys Limited. For the year ended December 31, 2016, the Company recognized net sales of $35.0 million and had $14.7 million of accounts receivable attributable to Underground Toys Limited.

Costs, such as advisory, legal, accounting fees and change of control fees, incurred by the Company related to the acquisition of certain assets of Underground Toys Limited were $1.8 million for the six months ended June 30, 2017 and are recorded within acquisition transaction costs in the consolidated statements of operations.

Foreign currency transaction gains and losses are included in other income, net on the condensed consolidated statements of operations. Foreign currency transaction gains and losses were not material for the six months ended June 30, 2017.

The activity of Funko UK, Ltd included in the Company’s condensed consolidated statements of operations from the acquisition date to June 30, 2017 was net sales of $31.0 million and a net loss of $1.4 million. Our UK operations are subject to UK income taxes, which were $0.8 million for the period from the acquisition date to June 30, 2017 and is included within income tax expense on the condensed consolidated statements of operations.

4. Fair Value Measurements

The Company recorded $54.9 million in contingent consideration which represented the fair value at the time of the ACON Acquisition, $40.0 million of which was paid out during the year ended December 31, 2016, and the remaining $25.0 million of which was paid out during the six months ended June 30, 2017. The Company recorded an estimated $2.5 million in contingent consideration at the time of the Underground Acquisition. The fair value of contingent consideration related to the Underground Acquisition was $2.5 million at June 30, 2017.

Fair value is measured using the discounted cash flow method and based on assumptions the Company believes would be made by a market participant. The significant unobservable inputs are probabilities of successful achievement of the EBITDA threshold that would trigger contingent purchase consideration, the timing of when the payments will be made, and the discount rate used at time of measurement. Significant changes to these assumptions would result in a significantly lower or higher fair value measurement. The valuation represents a Level 3 measurement within the fair value hierarchy.

The following table sets forth the fair value and a summary of changes to the fair value of these Level 3 financial liabilities (in thousands):

 

     Contingent
Consideration
 

Balance at December 31, 2016

   $ 25,000  

Additions

     2,470  

Payments

     (25,000

Changes in fair value

     8  
  

 

 

 

Balance at June 30, 2017

   $ 2,478  
  

 

 

 

Changes in fair value are recorded within selling, general and administrative expense on the consolidated statements of operations.

5. Line of Credit and Long-Term Debt

On October 30, 2015, the Company entered into a credit agreement which provided for a $175.0 million term loan facility (the “Term Loan A Facility”) and a revolving credit facility, including a

 

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$3.0 million subfacility for the issuance of letters of credit (the “Revolving Credit Facility” and, together with the Term Loan A Facility, the “Senior Secured Credit Facilities”).

On September 8, 2016, the Company entered into an amendment to the credit agreement which, among other things, increased borrowings under the Term Loan A Facility by $50.0 million and changed the interest rate applicable to the Revolving Credit Facility.

On January 17, 2017, the Company entered into an amendment to its credit agreement which provided for, among other things, an additional $50.0 million term loan facility (the “Term Loan B Facility” and, together with the Term Loan A Facility, the “Term Loan Facilities”), with interest rate options that can be chosen by the Company and an increase in commitments under the Revolving Credit Facility to $80.0 million. The Term Loan B Facility is payable in monthly installments of $1.0 million per month, with options to defer the installment payment by the Company on or prior to December 31, 2017 upon compliance with certain conditions. The remaining unpaid balance on the Term Loan B Facility, together with all accrued and unpaid interest, is due and payable on the earlier of October 30, 2021 and the date all commitments under the Revolving Credit Facility are terminated. Proceeds from the Term Loan B Facility were used to fund a $49.0 million special cash distribution to the holders of Class A Units of FAH, LLC, $0.8 million in cash bonus payments to certain of the Company’s executive officers and other employees and a $0.2 million reduction in interest and principal under loans to certain members of management. In conjunction with this amendment, the Company issued the lenders warrants to purchase 1,774 Class A Units and 94 Common Units of FAH, LLC.

The debt and warrants were measured at their relative fair value at the date of issuance and as the warrants were determined to be an equity instrument, the relative fair value of the warrants, net of the allocated portion of issuance costs was recorded as additional paid in capital. The relative fair value assigned to the warrants to purchase Class A Units was $5.0 million and $0.7 million for the warrants to purchase Common Units. The total amount assigned to warrants is recorded as a debt discount and is accreted to interest expense using the effective interest rate method over the life of the debt.

On June 26, 2017 and June 28, 2017, the Company entered into additional amendments to its credit agreement to, among other things, (1) permit the Company to enter into certain subordinated loan documents, and (2) increase borrowings under the Term Loan A Facility by $20.0 million, increase commitments under the Revolving Credit Facility to $100.0 million and make certain changes to certain covenants and definitions. Proceeds from the additional Term Loan A Facility borrowings were used to fund a portion of the purchase price for the Loungefly Acquisition and to pay related fees and expenses.

The Senior Secured Credit Facilities also provide for an excess cash flow payment following the end of each fiscal year that requires the Company to prepay the outstanding principal amount of all loans under the Senior Secured Credit Facilities in an aggregate amount equal to 60% of excess cash flow for such fiscal year, subject to certain step-downs and other reductions based on the Company’s senior leverage ratio and the amount of certain voluntary prepayments. The Company did not make any excess cash flow prepayments for the six months ended June 30, 2017 or the year ended December 31, 2016.

Effective June 26, 2017, in connection with the 2016 Earnout Payment, FAH, LLC issued promissory notes payable to certain of its members in the aggregate principal amount of $20.0 million (the “Subordinated Promissory Notes”). Borrowings under the Subordinated Promissory Notes accrue interest at a rate equal to 11.0% per year for the first 90 days after their effective date, increasing to 13.0% per year 91 days after such effective date and 15.0% per year 181 days after such effective

 

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date. Accrued interest on the Subordinated Promissory Notes is due and payable annually on each anniversary of the effective date, beginning on June 26, 2018, and may be capitalized or paid in cash (subject to the terms of a subordination agreement with the Company’s senior lenders). The unpaid principal balance of the Subordinated Promissory Notes, together with all accrued and unpaid interest, is due and payable on the earlier of (1) 180 days after the payment in full of the obligations under the Senior Secured Credit Facilities, and (2) the consummation of this offering. The Company may voluntarily prepay the outstanding borrowings under the Subordinated Promissory Notes, without premium or penalty, but together with all accrued and unpaid interest, subject to the terms of the Subordination Agreement and certain other requirements, including, among other things, availability of at least $15.0 million under the Revolving Credit Facility after giving effect to such prepayment. Proceeds from the Subordinated Promissory Notes were used to finance a portion of the contingent consideration related to the ACON Acquisition that was paid out during the six months ended June 30, 2017.

The Senior Secured Credit Facilities are collateralized by substantially all of the assets of, and the equity interests held by, the borrowers and any subsidiary guarantor that may become party to the credit agreement in the future, subject to certain exceptions. The Senior Secured Credit Facilities also contain certain financial and restrictive covenants. As of June 30, 2017, the Company was in compliance with all covenants under the Senior Secured Credit Facilities.

As of June 30, 2017 and December 31, 2016, the unamortized discount on the Term Loan Facilities was $12.1 million and $6.4 million, respectively. These costs are included as an offset in long-term debt on the condensed consolidated balance sheet.

As of June 30, 2017, the outstanding principal balance of the Term Loan A Facility was $233.1 million, with an effective interest rate of 9.0% per year. As of December 31, 2016, the outstanding principal balance of the Term Loan A Facility was $217.4 million, with an effective interest rate of 8.93% per year. As of June 30, 2017, the outstanding principal balance of the Term Loan B Facility was $47.0 million, with an effective interest rate of 17.4% per year. Term debt, net of unamortized discount of $12.1 million, was $268.0 million and $211.0 million as of June 30, 2017 and December 31, 2016, respectively.

The Company had $51.1 million and $6.7 million of borrowings under the Revolving Credit Facility as of June 30, 2017 and December 31, 2016, respectively. There were no outstanding letters of credit as of June 30, 2017 and December 31, 2016.

As of June 30, 2017 and December 31, 2016, the fair value of debt was $255.6 million and $196.3 million, respectively. The valuation of debt is performed using the discounted cash flow methodology and requires that management estimate a discount rate, using inputs observable in the market. Management’s estimate of the discount rate as of June 30, 2017 and December 31, 2016 was 13.0% and 11.0%, respectively.

6. Members’ Equity

On June 26, 2017, the Company issued 5,000 Class A Units in exchange for a contribution of $5.0 million from several members of management and the Company’s majority owner. As a result of this issuance, the Company recorded equity-based compensation expense in the condensed consolidated statements of operations of $2.2 million.

7. Related-Party Transactions

On October 31, 2015, the Company entered into a management services agreement with ACON Equity Management, L.L.C. (“ACON Equity Management”), which requires payment of a monitoring fee

 

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equal to the greater of (1) $500,000 and (2) 2% prior year Adjusted EBITDA, up to a maximum fee of $2.0 million. Pursuant to the management services agreement, Funko, LLC also agreed to pay ACON Equity Management a one-time advisory fee of $2.0 million, and agreed to reimburse ACON Equity Management for certain costs and expenses in connection with ACON Equity Management’s performance under the agreement. The management services agreement has an initial term of ten years, and is automatically renewable thereafter, provided that the agreement will terminate automatically immediately prior to the consummation of any sale transaction, in which case ACON Equity Management is entitled to receive an accelerated monitoring fee in an amount equal to the then- current monitoring fee payable for the lesser of three years and the remainder of the agreement’s initial ten-year term.

The Company recognized $1.0 million and $0.7 million in fees for the six months ended June 30, 2017 and 2016, respectively. These fees are recorded within selling, general and administrative expenses. As of June 30, 2017 and December 31, 2016, $1.0 million and $0.4 million of these fees and other amounts due to ACON Equity Management, were included within accrued expenses and other current liabilities.

On October 31, 2015, the Company entered into subscription agreements with several members of management (the “Purchasers”) to purchase Class A Units of FAH, LLC having an aggregate purchase price of $0.9 million. Funko, LLC entered into a secured promissory note with each Purchaser in an amount equal to the purchase price of the Class A Units purchased by such individual. Amounts outstanding under the promissory notes are collateralized by all direct or indirect ownership interests of the Purchasers in FAH, LLC. The promissory notes have a ten-year term and an 8% interest rate compounded on an annual basis. The promissory notes were recorded as a non-cash transaction within equity. The Company recognizes interest on a cash basis when principal payments are made, and recorded a nominal amount of interest income for the six months ended June 30, 2017 and the year ended December 31, 2016.

Effective June 26, 2017, the Company issued the Subordinated Promissory Notes to certain members of FAH, LLC, including several members of management and the Company’s majority owner, in the aggregate principal amount of $20.0 million. The Company recognized a nominal amount of interest expense for the six months ended June 30, 2017. Interest on the Subordinated Promissory Notes is due annually on June 26, and the Subordinated Promissory Notes mature on the earlier of (1) 180 days after payment of all obligations under the Senior Secured Credit Facilities, and (2) the consummation of a qualified initial public offering. Additionally, the Subordinated Promissory Notes may be prepaid in whole or in part without premium or penalty, but together with all accrued and unpaid interest, subject to the satisfaction of certain criteria, and subject to the terms of a subordination agreement between the lenders under the Subordinated Promissory Notes and the administrative agent under the Senior Secured Credit Facilities.

In June 2017, in connection with the Loungefly Acquisition, the Company assumed a lease for the headquarters and warehouse operations of the Loungefly business with 20310 Plummer Street LLC and entered into a global sourcing agreement with Sure Star Development Ltd. Both of the entities are owned by employees of the Company who were the former owners of Loungefly, LLC. At June 30, 2017, amounts owed to those entities were $5.4 million and were recorded in accounts payable on the condensed consolidated balance sheet.

 

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8. Segment Information

The Company has one reportable segment. The following table is a summary of product categories as a percent of net sales:

 

                                             
     Six Months Ended
June 30,
 
     2017     2016  

Figures

     83.7     81.5

Plush

     6.0       4.4  

Accessories

     4.1       5.5  

Other

     6.2       8.6  

The following tables present summarized geographical information (in thousands):

 

                                             
     Six Months Ended June 30,  
     2017      2016  

Net sales:

     

United States

   $ 149,548      $ 144,654  

Foreign

     54,250        31,607  
  

 

 

    

 

 

 

Total net sales

   $ 203,798      $ 176,261  
  

 

 

    

 

 

 

 

                                             
     June 30,
2017
     December 31,
2016
 

Long-lived assets:

     

United States

   $ 23,973      $ 14,773     

China and Vietnam

     15,689        13,791  

United Kingdom

     270         
  

 

 

    

 

 

 

Total long-lived assets

   $ 39,932      $ 28,564  
  

 

 

    

 

 

 

9. Accumulated Other Comprehensive Income

The components of accumulated other comprehensive income and the adjustments to other comprehensive income are as follows (in thousands):

 

     Foreign
currency
translation
adjustments
 

Six months ended June 30, 2017:

  

Balance at January 1, 2017

   $  

Other comprehensive income, net (1)

     771  
  

 

 

 

Balance at June 30, 2017

   $ 771  
  

 

 

 

 

(1) Foreign currency translation adjustments are not adjusted for income taxes as they related to permanent investments in the Company’s international subsidiary.

 

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            Shares

Funko, Inc.

Class A Common Stock

 

 

 

 

LOGO

 

 

Goldman Sachs & Co. LLC

J.P. Morgan

BofA Merrill Lynch

Piper Jaffray

Jefferies

Stifel

BMO Capital Markets

SunTrust Robinson Humphrey

 

Through and including                     , 2017 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

 

 

 


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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 13. Other expenses of issuance and distribution.

The following table sets forth all fees and expenses, other than the underwriting discounts and commissions payable solely by Funko, Inc. in connection with the offer and sale of the securities being registered. All amounts shown are estimated except for the SEC registration fee, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filing fee and the exchange listing fee.

 

     Amount
to be
paid
 

SEC registration fee

   $ 12,450  

FINRA filing fee

     15,500  

Exchange listing fee

     25,000  

Accounting fees and expenses

     *  

Legal fees and expenses

     *  

Printing expenses

     *  

Transfer agent and registrar fees

     *  

Blue sky fees and expenses

     *  

Miscellaneous expenses

     *  
  

 

 

 

Total

   $ *  
  

 

 

 

 

* To be completed by amendment.

Item 14. Indemnification of directors and officers.

Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides that no director of Funko, Inc. shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.

Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

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Upon consummation of this offering, our amended and restated certificate of incorporation and amended and restated bylaws will provide indemnification for our directors and officers to the fullest extent permitted by the General Corporation Law of the State of Delaware. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Our amended and restated certificate of incorporation and amended and restated bylaws will provide that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.

Prior to the consummation of this offering, we intend to enter into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and our amended and restated certificate of incorporation and amended and restated bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements will provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our amended and restated certificate of incorporation and amended and restated bylaws.

We maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers.

In any underwriting agreement we enter into in connection with the sale of Class A common stock being registered hereby, the underwriters will agree to indemnify, under certain conditions, us, our directors, our officers and persons who control us within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) against certain liabilities.

 

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Item 15. Recent sales of unregistered securities.

On April 21, 2017, Funko, Inc. issued 100 shares of common stock, par value $0.0001 per share, which will be redeemed upon the consummation of this offering, to an officer of Funko, Inc. in exchange for $0.01. The issuance was exempt from registration under Section 4(a)(2) of the Securities Act, as a transaction by an issuer not involving any public offering.

In connection with the recapitalization transactions described in the accompanying prospectus, Funko, Inc. will issue (i)                  shares of Class A common stock to the Former Equity Owners in exchange for their indirect ownership interest in common units of Funko Acquisition Holdings, L.L.C. and (ii)                  shares of Class B common stock to ACON, Fundamental Capital, LLC, Funko International, LLC and certain current and former officers, employees and directors. The shares of Class A common stock and the shares of Class B common stock described above will be issued in reliance on the exemption contained in Section 4(a)(2) of the Securities Act on the basis that the transaction will not involve a public offering. No underwriters will be involved in the transaction.

Item 16. Exhibits and financial statements.

(a) Exhibits

The following documents are filed as exhibits to this registration statement.

 

Exhibit
No.

    
  1.1*    Form of Underwriting Agreement.
  3.1    Certificate of Incorporation of Funko, Inc., as in effect prior to the consummation of this offering.
  3.2*    Form of Amended and Restated Certificate of Incorporation of Funko, Inc., to be in effect upon the consummation of this offering.
  3.3*    Form of Amended and Restated Bylaws of Funko, Inc. to be in effect upon the consummation of this offering.
  4.1*    Specimen Stock Certificate evidencing the shares of Class A common stock.
  5.1*    Opinion of Latham & Watkins LLP.
10.1*    Form of Tax Receivable Agreement, to be effective upon the consummation of this offering.
10.2*    Form of Stockholders Agreement, to be effective upon the consummation of this offering.
10.3*    Form of Second Amended and Restated LLC Agreement of Funko Acquisition Holdings, L.L.C., to be effective upon the consummation of this offering.
10.4*    Form of Registration Rights Agreement, to be effective upon the consummation of this offering.
10.5    Financing Agreement, dated as of October  30, 2015, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agent.

 

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Table of Contents

Exhibit
No.

    
10.6    Amendment No. 1 to the Financing Agreement, dated as of September  8, 2016, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agent.
10.7    Amendment No. 2 to the Financing Agreement, dated as of October  13, 2016, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agen t.
10.8    Amendment No. 3 to the Financing Agreement, dated as of January  17, 2017, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agent.
10.9    Amendment No. 4 to the Financing Agreement, dated as of June  26, 2017, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agent.
10.10    Amendment No. 5 to the Financing Agreement, dated as of June  28, 2017, by and among Funko Acquisition Holdings, L.L.C., as Ultimate Parent and a Borrower, Funko Holdings LLC, as Parent and a Borrower, and Funko, LLC, as a Borrower, the guarantors that may become party thereto, the lenders from time to time party thereto, Cerberus Business Finance, LLC, as Collateral Agent, and PNC Bank, National Association, as Administrative Agent.
10.11    Pledge and Security Agreement, dated as of October 30, 2015, by Funko Acquisition Holdings, L.L.C., Funko Holdings LLC and Funko LLC, in favor of Cerberus Business Finance, LLC, as Collateral Agent.
10.12    Security Agreement Supplement, dated as of June 28, 2017, by Loungefly, LLC, in favor of Cerberus Business Finance, LLC, as Collateral Agent.
10.13†    Funko Acquisition Holdings, L.L.C. 2015 Option Plan.
10.14†    Amendment No. 1 to Funko Acquisition Holdings, L.L.C. 2015 Option Plan.
10.15†    Form of Option Agreement.
10.16*†    2017 Incentive Award Plan and form of agreement.
10.17*†    2017 Executive Annual Incentive Plan and form of agreement.
10.18†    Employment Agreement, dated October 30, 2015, by and between Funko, LLC and Brian Mariotti.
10.19†    Offer letter, dated September 29, 2013, by and between Funko, LLC and Russell Nickel.
10.20*†    Employment Agreement, by and between Funko, Inc. and Russell Nickel, to be effective upon the consummation of this offering.

 

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Exhibit
No.

    
10.21†    Offer letter, dated June 15, 2016, by and between Funko, LLC and Tracy Daw.
10.22*†    Employment Agreement, by and between Funko, Inc. and Tracy Daw, to be effective upon the consummation of this offering.
10.23†    Offer letter, dated July 15, 2016, by and between Funko, LLC and Michael McBreen.
10.24†    Separation Agreement, dated August 28, 2017, by and between Funko, LLC and Michael McBreen.
10.25*†    Employment Agreement, by and between Funko, Inc. and Andrew Perlmutter.
10.26*    Form of Indemnification Agreement.
21.1    List of Subsidiaries of Funko, Inc.
23.1    Consent of Ernst & Young LLP as to Funko, Inc.
23.2    Consent of Ernst & Young LLP as to Funko Acquisition Holdings, L.L.C.
23.3*    Consent of Latham & Watkins LLP (included in Exhibit 5.1).
24.1    Power of Attorney (included on signature page).

 

* To be filed by amendment.
Indicates a management contract or compensatory plan or arrangement.

(b) Financial Statement Schedules

All schedules have been omitted because the information required to be set forth in the schedules is either not applicable or is shown in the financial statements or notes thereto.

Item 17. Undertakings.

(a) The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Funko, Inc. pursuant to the foregoing provisions, or otherwise, Funko, Inc. has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Funko, Inc. of expenses incurred or paid by a director, officer or controlling person of Funko, Inc. in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Funko, Inc. will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction, the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

(c) The undersigned hereby further undertakes that:

(1) For purposes of determining any liability under the Securities Act the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and

 

II-5


Table of Contents

contained in a form of prospectus filed by Funko, Inc. pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-6


Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, Funko, Inc. has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Everett, Washington, on this 6th day of October, 2017.

 

Funko, Inc.
By:   /s/ Brian Mariotti
 

Brian Mariotti

Chief Executive Officer

POWER OF ATTORNEY

Each of the undersigned officers and directors of Funko, Inc. hereby constitutes and appoints Brian Mariotti and Russell Nickel, and each of them any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign this registration statement of Funko, Inc. on Form S-1, and any other registration statement relating to the same offering (including any registration statement, or amendment thereto, that is to become effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and any and all amendments thereto (including post-effective amendments to the registration statement), and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-1 has been signed by the following persons in the capacities set forth opposite their names and on the date indicated above.

 

Signature

  

Title

 

Date

/s/ Brian Mariotti

Brian Mariotti

  

    

Chief Executive Officer and Director (Principal Executive Officer)

 

    

October 6, 2017

/s/ Russell Nickel

Russell Nickel

  

    

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

 

    

October 6, 2017

/s/ Ken Brotman

Ken Brotman

  

    

Director

 

    

October 6, 2017

/s/ Gino Dellomo

Gino Dellomo

  

    

Director

 

    

October 6, 2017

/s/ Charles Denson

Charles Denson

  

    

Director

 

    

October 6, 2017

 

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Table of Contents

Signature

  

Title

 

Date

/s/ Adam Kriger

Adam Kriger

  

    

Director

 

    

October 6, 2017

/s/ Richard McNally

Richard McNally

  

    

Director

 

    

October 6, 2017

/s/ Diane Irvine

Diane Irvine

  

    

Director

 

    

October 6, 2017

 

II-8

Exhibit 3.1

Execution Version

CERTIFICATE OF INCORPORATION

OF

FUNKO, INC.

FIRST: The name of the corporation is Funko, Inc. (the “ Corporation ”).

SECOND: The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ DGCL ”) or any successor statute.

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 100 shares of common stock, each with a par value of $0.0001 per share (the “ Common Stock ”). The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

FIFTH: The name and mailing address of the sole incorporator is as follows:

Devlin Woods

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

SIXTH: In furtherance of and not in limitation of powers conferred by statute, it is further provided:

1. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation (the “ Board of Directors ”).

2. Election of directors comprising the Board of Directors (each such director, in its capacity as such, a “Director”) need not be by written ballot unless the bylaws of the Corporation (the “ Bylaws ”) shall so provide.

SEVENTH: Except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no Director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any Director of the Corporation for or with respect to any acts or omissions of such Director occurring prior to such amendment or repeal.


EIGHTH: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) Directors, officers and agents of the Corporation (and any other persons to which applicable law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested Directors or otherwise. Any repeal or modification of this provision shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

NINTH: Subject to such limitations as may be from time to time imposed by other provisions of this Certificate of Incorporation, by the Bylaws, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this express reservation.

TENTH: In furtherance and not in limitation of the rights, powers, privileges and discretionary authority granted or conferred by the DGCL or other statutes or laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws, without any action on the part of the stockholders by resolution adopted by the affirmative vote of a majority of the members of the entire Board of Directors.


I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the DGCL, do make this certificate, herein declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 21st day of April, 2017.

 

/s/ Devlin Woods
Name: Devlin Woods
Title: Sole Incorporator

Exhibit 10.5

EXECUTION VERSION

FINANCING AGREEMENT

Dated as of October 30, 2015

by and among

FUNKO ACQUISITION HOLDINGS, L.L.C.,

as Ultimate Parent and a Borrower ,

FUNKO HOLDINGS LLC,

as Parent and a Borrower,

FUNKO, LLC

as a Borrower,

EACH OF THE GUARANTORS (AS DEFINED HEREIN),

as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

as Lenders,

CERBERUS BUSINESS FINANCE, LLC,

as Collateral Agent,

and

PNC BANK, NATIONAL ASSOCIATION

as Administrative Agent


TABLE OF CONTENTS

 

     Page  

ARTICLE I. DEFINITIONS; CERTAIN TERMS

     1  

Section 1.01 Definitions

     1  

Section 1.02 Terms Generally

     55  

Section 1.03 Certain Matters of Construction

     55  

Section 1.04 Accounting and Other Terms

     56  

Section 1.05 Time References; Notices

     56  

Section 1.06 Effectiveness of the Borrowers

     56  
ARTICLE II. THE LOANS      57  

Section 2.01 Commitments

     57  

Section 2.02 Making the Loans

     58  

Section 2.03 Repayment of Loans; Evidence of Debt

     61  

Section 2.04 Interest

     62  

Section 2.05 Reduction of Commitment; Prepayment of Loans

     63  

Section 2.06 Fees

     67  

Section 2.07 LIBOR Option

     70  

Section 2.08 Funding Losses

     72  

Section 2.09 Taxes

     73  

Section 2.10 Increased Costs and Reduced Return

     76  

Section 2.11 Extended Term Loans and Extended Revolving Credit Commitments

     78  

Section 2.12 Mitigation Obligations; Replacement of Lenders

     82  
ARTICLE III. LETTERS OF CREDIT      83  

Section 3.01 Letters of Credit

     83  

Section 3.02 Issuance of Letters of Credit

     83  

Section 3.03 Requirements For Issuance of Letters of Credit

     85  

Section 3.04 Disbursements, Reimbursement

     86  

Section 3.05 Repayment of Participation Revolving Loans

     87  

Section 3.06 Documentation

     87  

Section 3.07 Determination to Honor Drawing Request

     88  

Section 3.08 Nature of Participation and Reimbursement Obligations

     88  

Section 3.09 Indemnity

     89  

Section 3.10 Liability for Acts and Omissions

     90  

ARTICLE IV. APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF

        BORROWERS

     91  

Section 4.01 Payments; Computations and Statements

     91  

Section 4.02 Sharing of Payments

     93  

Section 4.03 Apportionment of Payments

     93  

Section 4.04 Defaulting Lenders

     95  

Section 4.05 Joint and Several Liability of the Borrowers

     96  

 

- i -


ARTICLE V. CONDITIONS TO LOANS      97  

Section 5.01 Conditions Precedent to Effectiveness

     97  

Section 5.02 Conditions Precedent to All Loans and Letters of Credit

     101  

Section 5.03 Conditions Subsequent to Effectiveness

     102  
ARTICLE VI. REPRESENTATIONS AND WARRANTIES      103  

Section 6.01 Representations and Warranties

     103  
ARTICLE VII. COVENANTS OF THE LOAN PARTIES      112  

Section 7.01 Affirmative Covenants

     112  

Section 7.02 Negative Covenants

     123  

Section 7.03 Financial Covenants

     131  
ARTICLE VIII. MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE AND OTHER         COLLATERAL      132  

Section 8.01 Collection of Accounts Receivable; Management of Collateral

     132  

Section 8.02 Covenant Re-Dating; Pledge of Credit

     134  

Section 8.03 Collateral Custodian

     134  
ARTICLE IX. EVENTS OF DEFAULT      135  

Section 9.01 Events of Default

     135  
ARTICLE X. AGENTS      139  

Section 10.01 Appointment

     139  

Section 10.02 Rights, Exculpation, Etc.

     140  

Section 10.03 Reliance

     141  

Section 10.04 Indemnification

     141  

Section 10.05 Agents Individually

     142  

Section 10.06 Successor Agent

     142  

Section 10.07 Collateral Matters

     143  

Section 10.08 Agency for Perfection

     145  

Section 10.09 No Reliance on any Agent’s Customer Identification Program

     145  

Section 10.10 No Third Party Beneficiaries

     146  

Section 10.11 No Fiduciary Relationship

     146  

Section 10.12 Reports; Confidentiality; Disclaimers

     146  

Section 10.13 Conduct of business by the Lenders and Agents

     147  
ARTICLE XI. GUARANTY      147  

Section 11.01 Guaranty

     147  

Section 11.02 Guaranty Absolute

     148  

Section 11.03 Waiver

     149  

Section 11.04 Continuing Guaranty; Assignments

     149  

Section 11.05 Subrogation

     150  
ARTICLE XII. MISCELLANEOUS      150  

Section 12.01 Notices, Etc.

     150  

Section 12.02 Amendments, Etc.

     153  

Section 12.03 No Waiver; Remedies, Etc.

     155  

 

- ii -


Section 12.04 Expenses; Taxes; Attorneys’ Fees

     155  

Section 12.05 Right of Set-off

     157  

Section 12.06 Severability

     157  

Section 12.07 Assignments and Participations

     157  

Section 12.08 Counterparts

     161  

Section 12.09 GOVERNING LAW

     161  

Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE

     161  

Section 12.11 WAIVER OF JURY TRIAL, ETC.

     162  

Section 12.12 [Reserved]

     163  

Section 12.13 No Party Deemed Drafter

     163  

Section 12.14 Reinstatement; Certain Payments

     163  

Section 12.15 [Intentionally Omitted]

     163  

Section 12.16 Indemnification; Limitation of Liability for Certain Damages

     163  

Section 12.17 Administrative Borrowers

     165  

Section 12.18 Records

     165  

Section 12.19 Binding Effect

     165  

Section 12.20 Interest

     165  

Section 12.21 Confidentiality

     167  

Section 12.22 Public Disclosure

     167  

Section 12.23 Integration

     167  

Section 12.24 USA PATRIOT Act

     168  

Section 12.25 Keepwell

     168  

 

- iii -


SCHEDULE AND EXHIBITS
Schedule 1.01(A)    Lenders and Lenders’ Commitments
Schedule 1.01(B)    Security Documents
Schedule 6.01(e)    Capitalization; Subsidiaries
Schedule 6.01(f)    Litigation; Commercial Tort Claims
Schedule 6.01(g)    Material Indebtedness
Schedule 6.01(i)    ERISA
Schedule 6.01(l)    Nature of Business
Schedule 6.01(o)    Real Property
Schedule 6.01(r)    Environmental Matters
Schedule 6.01(s)    Insurance
Schedule 6.01(v)    Bank Accounts
Schedule 6.01(w)    Intellectual Property
Schedule 6.01(x)    Material Contracts
Schedule 6.01(cc)    Name; Jurisdiction of Organization; Organizational ID Number;
   Chief Place of Business; Chief Executive Office; FEIN
Schedule 6.01(dd)    Collateral Locations
Schedule 6.01(ee)    Inventory Locations
Schedule 7.02(a)    Existing Liens
Schedule 7.02(b)    Existing Indebtedness
Schedule 7.02(e)    Existing Investments
Schedule 7.02(k)    Limitations on Dividends and Other Payment Restrictions
Schedule 8.01    Cash Management Accounts

 

Exhibit A    Form of Joinder Agreement
Exhibit B    Form of Assignment and Acceptance
Exhibit C    Form of Notice of Borrowing
Exhibit D    Form of LIBOR Notice
Exhibit E    Form of Borrowing Base Certificate
Exhibit F    Form of Letter of Credit Application

 

- iv -


FINANCING AGREEMENT

Financing Agreement, dated as of October 30, 2015, by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as hereinafter defined) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or ” Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” hereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages hereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” hereunder or otherwise guaranties all or any part of the Obligations (as hereinafter defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party hereto (each a “ Lender ” and collectively, the ” Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ” Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ” Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

RECITALS

Pursuant to the Acquisition Agreement (as hereinafter defined), the Buyer has agreed to acquire the Parent.

The Borrowers have asked the Lenders to extend credit consisting of (a) a Term Loan (as hereinafter defined) to be extended to the Borrowers in the aggregate principal amount of $175,000,000, and (b) a revolving credit facility extended to the Borrowers in an amount of up to $50,000,000, which will include a $3,000,000 subfacility for the issuance of letters of credit. The proceeds of the term loans and the loans made under the revolving credit facilities shall be used to finance a portion of the purchase price for the Funko Acquisition (as defined below), for working capital and other general corporate purposes of the Loan Parties, to refinance certain existing indebtedness, to pay fees and expenses related to this Agreement, and to fund a working capital adjustment in connection with the Funko Acquisition, if any. The letters of credit will be used for general working capital purposes. The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth.

In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS; CERTAIN TERMS

Section 1.01 Definitions . As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of such terms:

 

- 1 -


Account Debtor ” means each debtor, customer or obligor in any way obligated on or in connection with any Account Receivable.

Account Receivable ” means, with respect to any Person, any and all accounts (as that term is defined in the Uniform Commercial Code) and any and all rights of such Person to payment for goods sold and/or services rendered, including accounts, general intangibles and any and all such rights evidenced by chattel paper, instruments or documents, whether due or to become due and whether or not earned by performance, and whether now or hereafter acquired or arising in the future, and any proceeds arising therefrom or relating thereto.

Acquired Indebtedness ” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party in a Permitted Acquisition; provided that (x) such Indebtedness was in existence prior to the date of such Permitted Acquisition and was not incurred in connection with, or in contemplation of, such Permitted Acquisition and (y) such Indebtedness is not secured by any Liens on the assets of any Loan Party or any Subsidiary of any Loan Party except for Permitted Liens.

Acquisition ” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.

Acquisition Agreement ” means the Securities Purchase and Contribution Agreement, dated as of October 9, 2015 by and among (i) Funko Acquisition Holdings, L.L.C., a Delaware limited liability company, as the purchaser, (ii) Funko, LLC, a Washington limited liability company, as the company, (iii) Funko Holdings LLC, a Delaware limited liability company, as the parent, and (iv) Funko International, LLC, a Delaware limited liability company, Jon P. and Trishawn P. Kipp Children’s Trust, Brian Mariotti and Shannon Mariotti, a married couple resident in                                 , GLAD Funko Investments, Inc., a Delaware corporation, GAIN Funko Investments, Inc., a Delaware corporation, and each of the additional sellers identified on Exhibit A attached thereto, as amended or otherwise modified in a manner permitted hereunder.

Acquisition Assets ” means all of the property and assets (tangible and intangible) proposed to be purchased by the Buyer pursuant to the Acquisition Agreement.

Acquisition Documents ” means the Acquisition Agreement and all other operative agreements related thereto or executed in connection therewith.

Action ” has the meaning specified therefor in Section 12.12.

Administrative Agent ” has the meaning specified therefor in the preamble hereto.

Administrative Agent’s Account ” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders under this Agreement and the other Loan Documents.

Administrative Borrower ” has the meaning specified therefor in Section 12.17.

 

- 2 -


Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party.

Agent ” has the meaning specified therefor in the preamble hereto.

Agent Advances ” has the meaning specified therefor in Section 10.08(a).

Agreement ” means this Financing Agreement, including all amendments, restatements, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.

Agreement Among Lenders ” means the Agreement Among Lenders, dated as of the date hereof, among the Revolving Loan Lenders, on the one hand, and the Term Loan Lenders, on the other hand, as such agreement may be amended, restated, supplemented or otherwise modified pursuant to the terms thereof.

Anti-Terrorism Laws ” shall mean any Laws relating to, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time, including, without limitation, (i) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), as amended, and regulations promulgated thereunder, (ii) the Bank Secrecy Act, as amended, and regulations promulgated thereunder, (iii) the USA PATRIOT Act, as amended, and regulations promulgated thereunder, (iv) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”), (v) the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 and implementing regulations by the United States Department of the Treasury, (vi) any law prohibiting or directed against terrorist activities or the financing of terrorist activities ( e.g ., 18 U.S.C. §§ 2339A and 2339B), or (vii) any similar laws enacted in the United States or any other jurisdictions in which the parties to this agreement operate, as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto.

Applicable Prepayment Premium ” means, as of any date of determination, whether before or after an Event of Default or acceleration and to the extent applicable, an amount equal to (a) during the period of time from and after the Effective Date up to the date that is the first anniversary of the Effective Date, an amount equal to 2.00% times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total

 

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amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loans on such date, (b) during the period of time after the date that is the first anniversary of the Effective Date up to and including the date that is the second anniversary of the Effective Date, an amount equal to 1.00 % times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loans on such date, and (c) thereafter, zero.

Assignment and Acceptance ” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Collateral Agent, in accordance with Section 12.07 hereof and substantially in the form of Exhibit  B hereto or such other form acceptable to the Collateral Agent.

Authorized Officer ” means, with respect to any Person, the chief executive officer, chief financial officer, president, vice president-controller, treasurer or vice president of such Person.

Availability ” means, as of any date of determination, the result of (a) the lesser of (i) the Borrowing Base (as determined pursuant to the most recently delivered Borrowing Base Certificate) and (ii) the Total Revolving Credit Commitment, minus (b) the sum of (i) the aggregate outstanding principal amount of all Revolving Loans plus (ii) all Letter of Credit Obligations plus (iii) all outstanding fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04 which have been invoiced to Borrower (to the extent required under Section 4.01) prior to the date on which the most recent Borrowing Base Certificate has been delivered but not yet paid, minus (c) all of the Loan Parties’ accounts payable for which ninety (90) days or more have elapsed from the applicable invoice due date (as determined pursuant to the most recently delivered Borrowing Base Certificate).

Available Equity Proceeds ” means the cumulative net cash proceeds of any issuances of Qualified Equity Interests (other than Permitted Cure Stock) after the Effective Date, as such amount may be reduced to reflect application pursuant to clause (h) of the definition of Permitted Acquisition, clause (p) of the definition of Permitted Investments or clause (i) of the definition of Capital Expenditures.

Bank ” means PNC, its successors or any other bank designated by the Administrative Agent to the Administrative Borrower from time to time.

Bank Product Agreements ” means those certain cash management service agreements entered into from time to time between Borrowers, on the one hand, and an Agent or a Lender or its Affiliates, on the other hand, in connection with any of the Bank Products, including, without limitation, any Lender-Provided Hedge Agreement.

Bank Product Provider ” means any Agent or Lender or Affiliate thereof that provides Bank Products to any Loan Party.

 

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Bank Product Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Administrative Agent or any Lender as a result of Administrative Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to such Person pursuant to the Bank Product Agreements. Notwithstanding any of the foregoing, Bank Product Obligations shall not include any Excluded Hedge Liabilities.

Bank Product Reserve ” means, as of any date of determination, the lesser of (i) $2,000,000 and (ii) the amount of reserves that the Administrative Agent has established (based upon the Administrative Agent’s reasonable determination of the credit exposure in respect of the then extant Bank Products) in respect of Bank Products then provided or outstanding; provided that, in order to qualify as a Bank Product Reserve, such reserve must be established on or substantially contemporaneous with the date that the applicable Bank Product is provided.

Bank Products ” means any service or facility extended to the Borrowers by any Lender or its Affiliates including: (i) credit cards, (ii) credit card processing services, (iii) debit cards and stored value cards, (iv) purchase cards and commercial cards, (v) ACH transactions, (vi) cash management and treasury management services and products, including without limitation controlled disbursement, accounts or services, lockboxes, automated clearinghouse transactions, overdrafts, interstate depository network services, or (vii) Lender-Provided Hedge Agreements and other foreign exchange or “FX” cash management products.

Bankruptcy Code ” means (i) the United States Bankruptcy Code (11 U.S.C. § 101, et seq .), as amended, and any successor statute and (ii) such other applicable rules, laws or statutes of any Government Authority or court of a jurisdiction outside of the United States of America relating to bankruptcy, insolvency, assignments for the benefit of creditors, formal or informal moratoria, compositions, or extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief, as amended and in effect from time to time, and any successor rule, law or statute.

Blocked Person ” has the meaning assigned to such term in Section 6.01(ii).

Board ” means the Board of Governors of the Federal Reserve System of the United States.

Board of Directors ” means, (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

 

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Book Value ” means, with respect to any Inventory of any Person, the lower of (a) cost (as reflected in the general ledger of such Person before customary reserves established by such Person in good faith and in accordance with GAAP) and (b) market value, in each case, determined in accordance with GAAP calculated on a first-in first-out basis.

Borrower ” has the meaning specified therefor in the preamble hereto.

Borrowing Base ” means, at any time, an amount equal to (1) the lesser of (A) the then-existing Maximum Revolving Loan Amount and (B) the sum of (i) the lesser of (x) seventy percent (70%) of the Book Value of Eligible Inventory of the Borrowers at such time and (y) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Inventory of the Borrowers at such time, plus (ii) the lesser of (x) ten percent (10%) of the then-existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, plus (iii) eighty-five percent (85%) of the Net Amount of Eligible Domestic Accounts Receivable of the Borrowers at such time, plus (iv) the lesser of (x) twenty percent (20%) of the then-existing Maximum Revolving Loan Amount and (y) eighty-five percent (85%) of the Net Amount of Eligible Foreign Accounts Receivable of the Borrower at such time, plus (v) the lesser of (x) the Permitted Special Inventory Amount and (y) the then applicable Permitted Special Activated Amount minus (2) the aggregate amount of Reserves established by the Administrative Agent at such time.

Borrowing Base Certificate ” means a certificate signed by an Authorized Officer of the Administrative Borrower and setting forth the calculation of the Borrowing Base in compliance with Section 7.01(a)(vi), substantially in the form of Exhibit  E .

Business Day ” means (a) for all purposes other than as described in clause (b) below, any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in Pittsburgh, Pennsylvania or New York City, (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, LIBOR Rate Loans, any day that is a Business Day described in clause (a) above and on which dealings in Dollars may be carried on in the interbank eurodollar markets in New York City and London.

Buyer ” has the meaning specified therefor in the preamble hereto.

Capital Expenditures ” means, with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed and including all Capitalized Lease Obligations paid or payable during such period; provided , however , that the following shall not constitute Capital Expenditures: (i) expenditures to the extent that they are financed with the Available Equity Proceeds, (ii) expenditures to the extent that they are made with the proceeds of Reinvestment Eligible Funds, (iii) expenditures to the extent that they are made by the Ultimate Parent or any of its Subsidiaries to effect leasehold

 

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improvements to any property leased by such Person as lessee, to the extent that such expenses have been reimbursed in cash by the landlord that is not a Loan Party, (iv) expenditures to the extent that they are actually paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other Person (whether before, during or after such period), and (v) property, plant and equipment taken in settlement of accounts.

Capitalized Lease ” means, with respect to any Person, any lease of real or personal property by such Person as lessee which is (a) required under GAAP to be capitalized on the balance sheet of such Person or (b) a transaction of a type commonly known as a “synthetic lease” ( i.e. , a lease transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

Capitalized Lease Obligations ” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

Cash Collateralize ” means to deliver to the Administrative Agent an amount in the applicable currency in which any Letter of Credit is denominated (whether in cash or in the form of a backstop letter of credit in form and substance reasonably satisfactory to, and issued by a U.S. commercial bank reasonably acceptable to, the Administrative Agent in its Permitted Discretion) equal to 105% of the sum of (a) the maximum aggregate amount available for drawing under any outstanding Letter of Credit plus the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit which have not been converted to Revolving Loans plus (b) the amount of unpaid Letter of Credit Fees then accrued. Derivatives of such term have corresponding meanings. Without limiting the generality of any other grant of Liens in any Loan Document, each Loan Party hereby grants to Administrative Agent a continuing and first priority security interest in all Cash Collateral delivered to Administrative Agent to secure all Letter of Credit Obligations and/or Post-Term Letter of Credit Obligations, as applicable.

Cash Equivalents ” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market

 

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accounts maintained with mutual funds having assets in excess of $2,500,000,000; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within six months from the date of acquisition thereof; and (g) in the case of Investments by a foreign Subsidiary, investments/instruments corresponding to and with equivalent quality to investments/instruments described in the foregoing clauses (a) through (f) available in and/or guaranteed by the equivalent Governmental Authorities in the country in which such foreign Subsidiary is located.

Cash Management Accounts ” means the bank accounts of each Loan Party (other than (a) accounts specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees, (b) any account over which the grant of a Cash Management Agreement is legally prohibited or which constitute cash collateral in respect of a Permitted Lien and (c) any account with an average daily balance during any month no greater than $50,000 (provided that the aggregate average daily balance during any month in all such accounts is less than $200,000).

Cash Management Agreement ” means a deposit account control agreement, in form and substance reasonably satisfactory to the Agents, by and among a Loan Party, the Collateral Agent and a Cash Management Bank with respect to each Cash Management Account.

Cash Management Bank ” has the meaning specified therefor in Section 8.01(a).

Cerberus ” has the meaning specified therefor in the preamble hereto.

CEA ” means the Commodity Exchange Act (7 U.S.C.§1 et seq.), as amended from time to time, and any successor statute.

CFC ” means a controlled foreign corporation (as that term is defined in the IRC).

CFTC ” means the Commodity Futures Trading Commission.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith (whether or not having the force of law) and (ii) all requests, rules, regulations, guidelines , interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each case, pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued, promulgated or implemented.

Change of Control ” means each occurrence of any of the following:

 

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(a) the Permitted Holders cease beneficially and of record to own and control, directly or indirectly, at least 50.1% on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of the Ultimate Parent;

(b) [Intentionally Omitted];

(c) during any period of two consecutive years following the Effective Date, individuals who at the beginning of such period constituted the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) (together with any new directors whose election by such Board of Directors or whose nomination for election by the members of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) was approved by a vote of at least a majority the directors or managers of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) then still in office who were either directors or managers at the beginning of such period, or whose election or nomination for election was previously approved by the Board of Directors) cease for any reason to constitute a majority of the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company);

(d) the Ultimate Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party (other than in connection with any transaction permitted pursuant to Section 7.02(c)), free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens not arising under the Loan Documents that are consensual or contractual Liens); or

(e) a “Change of Control” (or any comparable term or provision) under or with respect to any Disqualified Equity Interests or the Subordinated Indebtedness of the Ultimate Parent or any of its Subsidiaries.

Closing Fee ” has the meaning specified therefor in Section 2.06(a).

Collateral ” means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.

Collateral Agent ” has the meaning specified therefor in the preamble hereto.

Collateral Assignment ” means the Collateral Assignment of Acquisition Documents, dated as of the date hereof, and in form and substance reasonably satisfactory to the Collateral Agent, made by the Buyer in favor of the Collateral Agent.

Collections ” means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds).

Commitments ” means, with respect to each Lender, such Lender’s Revolving Credit Commitment and Term Loan Commitment.

 

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Consolidated Adjusted Working Capital ” means at any date the excess of (i) Consolidated Current Assets (excluding (a) deferred tax assets and (b) cash and Cash Equivalents classified as such in accordance with GAAP) over (ii) Consolidated Current Liabilities (excluding (a) deferred tax liabilities and (b) the current portion of any Consolidated Funded Indebtedness); provided however that Consolidated Adjusted Working Capital shall be calculated without giving effect to any Consolidated Current Assets or Consolidated Current Liabilities acquired or assumed in any Permitted Acquisition consummated during the applicable period to the extent financed with Indebtedness, Equity Issuances of Parent, or Reinvestment Eligible Funds.

Consolidated Cash Interest Expense ” means, for any period, Consolidated Net Interest Expense that has been paid or is payable in cash during such period, other than (without duplication and to the extent, but only to the extent, included in the determination of Consolidated Net Interest Expense for such period in accordance with GAAP and paid in cash for such period): (i) amortization of debt discount and debt issuance fees, (ii) any fees (including underwriting fees) and expenses paid in connection with the consummation of the Acquisition or the consummation or proposed consummation of any Permitted Acquisition), (iii) any payments made to obtain Hedging Agreements and (iv) any agent or collateral monitoring fees paid or required to be paid pursuant to any Loan Document.

Consolidated Current Assets ” means at any date the consolidated current assets of Ultimate Parent and its Subsidiaries determined as of such date.

Consolidated Current Liabilities ” means at any date, without duplication, (i) the consolidated current liabilities of Ultimate Parent and its Subsidiaries plus (ii) all guaranty obligations of Ultimate Parent or any consolidated Subsidiary of Ultimate Parent in respect of the current liabilities of any Person (other than Ultimate Parent or a consolidated Subsidiary of Ultimate Parent), determined as of such date.

Consolidated EBITDA ” means, with respect to any Person for any period, (a) Consolidated Net Income plus (b) without duplication, the sum of the following amounts to the extent deducted in determining Consolidated Net Income of such Person and its Subsidiaries for such period: (i) Consolidated Net Interest Expense, (ii) income tax expense minus any income tax benefit recorded (but only to the extent such result is a positive number), (iii) depreciation expense, (iv) amortization expense, (v) Permitted Management Fees paid or accrued by such Person or its Subsidiaries to any of its Affiliates during such period, (vi) fees and expenses for third party professionals, agents and advisors and other transaction costs and expenses incurred in connection with the consummation of the closing of the Acquisition, the Loan Documents and Permitted Acquisitions consummated after the Effective Date (including (A) in connection with the closing of the Acquisition, fees payable to the Permitted Holders and their Affiliates in an aggregate amount not to exceed $11,700,000, and consent fees payable to third party licensors and lessors in an aggregate amount not to exceed $8,500,000; provided that the amount of such fees and expenses are actually incurred within 180 days of the Effective Date and (B) any other Permitted Acquisitions consummated after the Effective Date to the extent the aggregate amount of such fees and expenses under this subclause (B) does not exceed $2,000,000 in any Fiscal Year), (vii) non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity

 

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Interests, the granting of stock options, and similar arrangements, (viii) all other non-cash, non-recurring charges (other than any such non-cash expenses or charges that represent an accrual or reserve for future cash expenses or charges or a write-down or write-off of current assets (other than as a result of the application of purchase accounting)), including, without limitation, non-cash exchange, translation, or performance losses relating to any hedging transactions or foreign currency fluctuation, non-cash charges in respect of earnouts, non-cash mark-to-market expenses relating to any Hedging Agreement permitted hereunder, non-cash stock or equity compensation and non-cash charges associated with any write-off of deferred amortization costs, (ix) non-recurring cash charges resulting from severance, consulting, advisory and other similar transition expenses, stay or sign-on bonuses, retirement of debt, restructuring, consolidation, transition integration and other similar adjustments made as a result of Permitted Acquisitions and other Permitted Investments (including facility start-up costs and pursuit and broken deal costs in respect of acquisitions and investments); provided, that the amounts added back pursuant to this clause (ix) and clause (x) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (x) pro forma cost savings and synergies (net of actual amounts realized) in connection with any Permitted Acquisition or other Permitted Investments that are identifiable, factually supported and validated by an independent third party financial analysis and expected to occur within the next twelve (12) months based on specifically identifiable actions which have been taken or will be taken; provided, that the amounts added back pursuant to this clause (x) and clause (ix) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (xi) any charges associated with the Funko Earnout, (xii) to the extent not included in Consolidated Net Income, cash proceeds of business interruption insurance received during such period and the proceeds of any indemnification payments received from third parties for items to the extent such items reduced Consolidated Net Income and (xiii) Pro Forma EBITDA from Permitted Acquisitions supported by a quality of earnings report or a certified analysis of the CFO of the Borrower, in either case the results of which shall be reasonably satisfactory to the Collateral Agent. Notwithstanding the foregoing, for purposes of calculating the Senior Leverage Ratio only, (x) for the fiscal quarter ended June 30, 2015, Consolidated EBITDA shall be equal to $16,242,000, and (y) for the fiscal quarter ended September 30, 2015, Consolidated EBITDA shall be equal to $24,019,000.

Consolidated Funded Indebtedness ” means, with respect to any Person at any date, all Indebtedness (other than Indebtedness of the type described in clause (g) of the definition of Indebtedness, any Indebtedness that is cash collateralized, any obligations in relation to Funko Preferred Earnout Equity and any contingent earnouts and similar obligations to the extent not due and payable, including the Funko Earnouts, except in the case of any Funko Earnout that is due and payable, in which case the amount of such obligation that is expected to be funded through an Equity Issuance by Ultimate Parent (including the issuance of the Funko Earnout Preferred Equity) shall be excluded from Consolidated Funded Indebtedness to the extent such amount is supported by a written notification from ACON that a capital call was made for such amount (other than in connection with the issuance of Funko Earnout Preferred Equity)) of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, including, in any event, with respect to the Ultimate Parent and its Subsidiaries, the Revolving Loans, the Term Loans, the Letter of Credit Obligations and all Capitalized Lease Obligations of the Ultimate Parent and its Subsidiaries, provided that the aggregate outstanding amount of all Revolving Loan Obligations and Letter of Credit Obligations as of such date shall be calculated on such date based on the average daily balance thereof during the applicable trailing twelve month test period ending on such date.

 

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Consolidated Net Income ” means, with respect to any Person for any period, the net income (loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis and in accordance with GAAP, but excluding from the determination of Consolidated Net Income (without duplication) (a) any extraordinary or non-recurring gains or losses or gains or losses from Dispositions, (b) non-cash restructuring charges and (c) effects of discontinued operations.

Consolidated Net Interest Expense ” means, with respect to any Person for any period, the total interest expense of such Person for such period, whether paid or accrued and whether or not capitalized including, without limitation, amortization of debt issuance costs and original issue discount, interest capitalized during construction, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments under Capitalized Leases (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs (included in interest expense) in respect of Hedging Agreements, in each case determined (i) on a consolidated basis for such period, net of all interest income and (ii) net of amounts paid or payable and/or received or receivable under Hedging Agreements in respect of interest rates.

Contingent Obligation ” means, with respect to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, capitalized leases or dividends (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

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Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Covered Entity ” means (a) each Borrower, each of Borrower’s Subsidiaries, all Guarantors and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

Current Value ” has the meaning specified therefor in Section 7.01(o).

Daily LIBOR Rate ” means, for any day, the rate per annum determined by the Administrative Agent by dividing (i) the Published Rate by (ii) a number equal to 1.00 minus the Reserve Percentage.

Debtor Relief Law ” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.

Default ” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

Defaulting Lender ” means, subject to Section 4.04(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has notified the Administrative Borrower, the Administrative Agent or any L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative

 

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Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender, subject to Section 4.04(d), upon delivery of written notice of such determination to the Administrative Borrower, each L/C Issuer and each Lender.

Dilution ” means a percentage, reasonably determined by Administrative Agent based upon the experience of the immediately prior ninety (90) days that is the result of dividing the amount of (a) discounts, advertising allowances, credits, or other similar items that are granted in the ordinary course of business with respect to the Borrowers’ Accounts Receivable during such period, by (b) the Borrowers’ billings with respect to Accounts Receivable during such period.

Dilution Reserve ” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts Receivable of the Borrowers, by one (1) percentage point for each percentage point by which Dilution is in excess of five percent (5.0%); provided that the Dilution Reserve shall be calculated without regard to co-op advertising expenses and discounts for advertising expenses that are otherwise taken into account in determining the net amount of Eligible Accounts Receivable and/or other Reserves.

Disposition ” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person, excluding any sales of Inventory in the ordinary course of business.

Disqualified Equity Interests ” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date which is 91 days after the Final Maturity Date (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Interests referred to in clause (a) above, in each case at any time

 

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prior to the date which is 91 days after the Final Maturity Date at the option of any Person other than a Loan Party, (c) contains any repurchase obligation that may come into effect either (i) prior to Payment in Full of all Obligations or (ii) prior to the date that is 91 days after the Final Maturity Date or (d) provides for scheduled payments or the payment of cash dividends or distributions prior to the date that is 91 days after the Final Maturity Date.

Document ” shall have the meaning given to the term “document” in the Uniform Commercial Code.

Dollar ,” “ Dollars ” and the symbol “ $ ” each means lawful money of the United States of America.

Dollar Equivalent ” means at any time (i) as to any amount denominated in Dollars, the amount thereof at such time, and (ii) as to any amount denominated in any other currency, the equivalent amount in Dollars calculated by the Administrative Agent in good faith at such time using the Exchange Rate in effect on the Business Day of determination.

Domestic In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location inside the United States to any location of a Loan Party within the United States.

Drawing Date ” has the meaning specified therefor in Section 3.04(b).

Effective Date ” has the meaning specified therefor in Section 5.01.

Effectiveness Date ” means the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.

Eligibility Date ” means, with respect to each Borrower and Guarantor and each Swap, the date on which this Agreement or any other Loan Document becomes effective with respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the Effectiveness Date of such Swap if this Agreement or any other Loan Document is then in effect with respect to such Borrower or Guarantor, and otherwise it shall be the Effectiveness Date of this Agreement and/or such other Loan Document(s) to which such Borrower or Guarantor is a party)

Eligible Accounts Receivable ” means the Accounts Receivable of a Borrower that, meet all of the following specifications:

(a) delivery of the merchandise or the rendition of the services has been completed with respect to such Account Receivable;

(b) no return, rejection, repossession or dispute has occurred with respect to such Account Receivable, the Account Debtor has not asserted any setoff, defense or counterclaim with respect to such Account Receivable, and there has not occurred any extension of the time for payment with respect to such Account Receivable without the consent of the Administrative Agent, provided that, in the case of any dispute, setoff, defense or counterclaim with respect to an Account Receivable, the portion of such Account Receivable not subject to such dispute, setoff, defense or counterclaim will not be ineligible solely by reason of this clause (b);

 

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(c) such Account Receivable is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agent and the Secured Parties and is lawfully owned by a Borrower free and clear of any Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in conformity in all material respects with all representations and warranties made by a Borrower to the Agents and the Lenders with respect thereto in the Loan Documents, and such Borrower has the right to grant Liens on such Account Receivable;

(d) such Account Receivable (i) is not evidenced by a promissory note, chattel paper, bill of sale or any other instrument or other document in respect of which the perfection or priority of the security interest of the Collateral Agent in such document would be enhanced or ensured by possession under applicable law unless the original of such document is in the possession of the Collateral Agent and contains all necessary endorsements in favor of the Collateral Agent, and (ii) is unconditionally payable in Dollars or, in case of Account Debtors located in Canada, Dollars or Canadian Dollars (converting such Canadian Account Receivable into the Dollar Equivalent thereof as of the date of the delivery of each applicable Borrowing Base Certificate);

(e) if such Account Receivable (x) has selling terms of net 30 days or less, then no more than 60 days have elapsed from the invoice due date or no more than 90 days have elapsed from the invoice date and (y) has selling terms of greater than net 30 days, then no more than 60 days have elapsed from the invoice due date or no more than 120 days have elapsed from the invoice date;

(f) such Account Receivable is not due from an Affiliate of a Borrower;

(g) such Account Receivable does not constitute an obligation of the federal government of the United States (or any other Untied States federal Governmental Authority) which is either (x) eligible for assignment under the Federal Assignment of Claims Act (unless, if applicable, all steps required by the Administrative Agent in connection therewith, including notice to the United States Government under the Federal Assignment of Claims Act have been duly taken in a manner satisfactory to the Administrative Agent) or (y) otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section 9-406 of the Uniform Commercial Code (unless all necessary steps have been taken to comply with such restrictions on assignment), except for any such Accounts Receivable the net invoice amount of which does not exceed, individually as to any such Account Receivable or in the aggregate as to all such Accounts Receivable, $1,000,000 at any one time;

(h) [intentionally omitted];

(i) the Account Debtor with respect to such Account Receivable is not also a supplier to or creditor of a Borrower, unless such Account Debtor has executed a no-offset letter reasonably satisfactory to the Administrative Agent;

 

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(j) with respect to the Account Debtor for such Account Receivable, not more than 50% of the aggregate amount of all Accounts Receivable of such Account Debtor are excluded on the basis of the aging requirements set forth in clause (e) above;

(k) the sale to the Account Debtor is not on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment or any other repurchase or return basis or is evidenced by chattel paper,

(l) [intentionally omitted];

(m) the Account Debtor on the Account Receivable is not a Blocked Person;

(n) the Account Debtor with respect to such Account Receivable (i) has not filed a petition for bankruptcy or any other relief under any Debtor Relief Law, (ii) has not failed, suspended business operations, become insolvent or called a meeting of its creditors or otherwise commenced action under any assignment for the benefit of creditor statute, (iii) has not had or suffered to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs or (iv) in the case of an Account Debtor who is an individual, is not an employee of a Borrower or any of its Affiliates and has not died or been declared incompetent; and

(o) the Administrative Agent is, and continues to be, satisfied with the credit standing of the Account Debtor in relation to the amount of credit extended, either with respect to such Account Debtor overall and/or specifically with respect to any foreign offices of such Account Debtor, and the Administrative Agent believes, in its Permitted Discretion, that the prospect of collection of such Account Receivable is not impaired for any reason.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Account Receivable at any time ceases to be an Eligible Account Receivable (other than by means of clause (e) or (j) above) and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Account Receivable from the calculation of the Borrowing Base, (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Accounts Receivable acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Accounts Receivable for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower.

Eligible Contract Participant ” means an “eligible contract participant” as defined in the CEA and regulations thereunder.

Eligible Customs Broker ” shall mean Radiant Customs Services Inc. or another customs broker that has its principal assets and principal place of business in the United States and which is acceptable to Administrative Agent in its Permitted Discretion and with which Collateral Agent has entered into a freight forwarder agreement, in form and substance acceptable to Administrative Agent in its Permitted Discretion.

 

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Eligible Domestic Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located in Canada or the United States.

Eligible Foreign Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located outside of Canada or the United States.

Eligible Domestic In-Transit Inventory ” shall mean Inventory that would be Eligible Inventory but for the fact that it is Domestic In-Transit Inventory, but only if: (a) such Domestic In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has occurred and title has passed to such Borrower; (b) no default exists under any agreement in effect between the vendor of such Inventory and such Borrower that would permit such vendor under any applicable Law (including the Uniform Commercial Code) to divert, reclaim, reroute, or stop shipment of such Inventory; and (c) such Domestic In-Transit Inventory is fully insured in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent in its Permitted Discretion and in respect of which Collateral Agent has been named as lender loss payee.

Eligible Foreign In-Transit Inventory ” shall mean raw materials and finished goods Inventory that would be Eligible Inventory but for the fact that it is Foreign In-Transit Inventory, but only if: (a) such Foreign In-Transit Inventory is the subject of a Negotiable Document that designates Collateral Agent as the consignee; (b) such Foreign In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has occurred and title has passed to such Borrower; (c) Administrative Agent has received assurances satisfactory to it that all of the original Documents evidencing such Foreign In-Transit Inventory (all of which Documents shall be Negotiable Documents) have been issued by the applicable carrier and have been forwarded to an Eligible Customs Broker (and, if such Documents are not actually received by an Eligible Customs Broker within ten (10) days after the sending thereof, such Foreign In-Transit Inventory shall thereupon cease to be Eligible Foreign In-Transit Inventory), or, if required by Administrative Agent in the exercise of its Permitted Discretion, all of such original Documents are in the possession, in the United States, of Administrative Agent or an Eligible Customs Broker (as specified by Administrative Agent); (d) [reserved]; (e) such Foreign In-Transit Inventory is fully insured by marine cargo or other similar insurance, in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent and in respect of which Collateral Agent has been named as lender loss payee; and (f) Agents have received an executed freight forwarder agreement with respect to such Inventory from an Eligible Customs Broker; provided that, notwithstanding anything to the contrary provided for in the foregoing, during the period of the first 90 days after the Effective Date, no Foreign In-Transit Inventory shall be excluded from Eligible Foreign In-Transit Inventory due to the fact that the applicable customs broker has not yet become an Eligible Customs Broker by entering into an acceptable freight forwarder agreement with Collateral Agent that is acceptable to Administrative Agent; and also provided further that, notwithstanding anything to the contrary contained in this definition, Administrative Agent may from time to time, acting in its Permitted Discretion, treat Foreign In-Transit Inventory that otherwise meets the requirements of this definition as Eligible Foreign In-Transit Inventory regardless of the fact that such Foreign In-Transit Inventory is not the subject of Negotiable Documents and that therefore no such

 

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Negotiable Documents have been issued or delivered to the applicable Eligible Customs Broker with respect to such Foreign In-Transit Inventory, but only if and so long as Administrative Agent is satisfied in its Permitted Discretion that conducting such in-transit Inventory transactions without the issuance of Negotiable Documents (x) is in the ordinary course of business of both Borrowers and the applicable Eligible Customs Broker and (y) will not jeopardize the perfection or priority of Collateral Agent’s Lien in the applicable Foreign In-Transit Inventory.

Eligible In-Transit Inventory ” means all Eligible Domestic In-Transit Inventory and Eligible Foreign In-Transit Inventory.

Eligible Inventory ” means all Inventory of a Borrower that meets all of the following specifications:

(a) such Inventory is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and is lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in full conformity with all representations and warranties made by a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents;

(b) such Inventory is not held on consignment and may be lawfully sold;

(c) a Borrower has the right to grant Liens on such Inventory;

(d) such Inventory arose or was acquired in the ordinary course of the business of a Borrower and does not represent damaged or unsalable goods;

(e) no Account Receivable or document of title has been created or issued by Borrowers with respect to such Inventory, and such Inventory (excluding In-Transit Inventory) is not subject to any document of title;

(f) subject to clause (j) below, such Inventory is located in one of the locations in the continental United States listed on Schedule 6.01(ee) or such other locations as notified to the Administrative Agent in writing from time to time;

(g) if such Inventory consists of finished goods Inventory sold under a licensed trademark or if such Inventory contains or uses a medium subject to a copyright (i) the Collateral Agent shall have entered into a waiver letter, in form and substance reasonably satisfactory to the Administrative Agent, with the licensor with respect to the rights of the Collateral Agent to use the licensed trademark or copyright to sell or otherwise dispose of such Inventory or (ii) the Administrative Agent shall otherwise be satisfied, in its Permitted Discretion (it being understood and agreed that such discretion shall be exercised in a manner that is consistent with the methodology applied in determining Eligible Inventory on the Effective Date), that the Collateral Agent has rights to sell or dispose of such Inventory and such Inventory could be liquidated without assistance or interference from, or the payment of money (other than the payment of royalties and similar fees payable by the licensee connection with such sale or disposition) to, such third party (it being understood that the following aspects of a license or

 

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similar agreement shall not result in any related Inventory failing to satisfy this clause (g): any restrictions applicable to dispositions by the licensee due to the effect of any license termination provisions on the ability of the licensee to sell or dispose of such inventory that do not otherwise impose more burdensome obligations on the Collateral Agent in relation to dispositions);

(h) the Inventory is not work-in-process, supplies (other than raw materials used in the manufacture of Inventory) or packaging;

(i) subject to clause (j) below, such Inventory is located on real property owned or leased by a Loan Party or in a contract warehouse or located with a vendor (not including any consigned Inventory of any Borrower held by such vendor as consignee, which shall not be Eligible Inventory) or processor, in each such case at a location listed on Schedule 6.01(dd) or Schedule 6.01(ee) or a location of which Administrative Agent has received notice under Section 7.01(a)(v) (without regard to any exceptions to location reporting requirements thereunder), and unless such location is real property owned by a Loan Party, (1) either (x) the owner, lessor, warehouseman, vendor, processor or other bailee or third party, as the case may be shall have (within 90 days of the Effective Date, or such later date as may be permitted by the Administrative Agent in its sole discretion) executed and delivered a written subordination, waiver or access agreement in form and substance reasonably satisfactory to the Collateral Agent, or (y) the Administrative Agent has instituted a Reserve with respect to such location (subject to the provisions of Section 7.01(m)), and (2) it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises; and

(j) the Inventory is not In-Transit Inventory.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Inventory at any time ceases to be Eligible Inventory or Eligible In-Transit Inventory, and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Inventory from the calculation of the Borrowing Base (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Inventory acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Inventory or Eligible In-Transit Inventory for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower.

Eligible Special Inventory ” means any Inventory of the Borrower that does not constitute Eligible Inventory or Eligible In-Transit Inventory solely as result of restrictions or requirements contained in any license or similar agreement relating to such Inventory where the effect of such restrictions or requirements is to cause the requirements of clauses (a), (c) or (g) of the definition of Eligible Inventory to not be satisfied; provided , however , that such Eligible Special Inventory shall be limited to Inventory subject to license or similar agreements with not more than the top ten (10) licensors (who have not provided licensor consents reasonably acceptable to Administrative Agent) as of any date of determination.

 

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Employee Plan ” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was maintained at any time during the six (6) calendar years preceding the date of any borrowing hereunder) for employees of any Loan Party or any of its Subsidiaries.

Environmental Actions ” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving violations of Environmental Laws or Releases of Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Loan Party or any of its Subsidiaries or any predecessor in interest; (b) from adjoining properties or businesses; or (c) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.

Environmental Laws ” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq .), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq .), the Federal Clean Water Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), as such laws may be amended or otherwise modified from time to time, and any other present or future federal, state, local or foreign statute, ordinance, rule, regulation, order, judgment, decree, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other government restrictions relating to the protection of the environment or the Release, deposit or migration of any Hazardous Materials into the environment.

Environmental Liabilities and Costs ” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any environmental condition or a Release of Hazardous Materials from or onto (i) any property presently or formerly owned by any Loan Party or any of its Subsidiaries or (ii) any facility which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries.

Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

Equipment ” means equipment (as that term is defined in the Uniform Commercial Code), and includes machinery, machine tools, motors, furniture, furnishings, vehicles (including motor vehicles), computer hardware, tools, parts, and goods (other than consumer goods, farm products, Inventory or fixtures), wherever located, including all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing.

 

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Equity Interest ” means (a) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (b) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

Equity Issuance ” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by Ultimate Parent of any cash capital contributions.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

ERISA Affiliate ” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

Event of Default ” means any of the events set forth in Section 9.01.

Excess Cash Flow ” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, plus (b) proceeds from any Extraordinary Receipts received during such period to the extent not included in the calculation of Consolidated EBITDA, plus (c) the decrease, if any, in Consolidated Adjusted Working Capital during such period, less (d) the increase, if any, in Consolidated Adjusted Working Capital during such period, less (e) the sum of (i) all scheduled cash principal payments, including any make-whole, prepayment premiums or call premiums not otherwise included pursuant to clause (ii) below, of such Person or any of its Subsidiaries during such period (but, in the case of a revolving credit facility, only to the extent that the commitment thereunder is permanently reduced by the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period, (iii) the cash portion of Capital Expenditures made by such Person and its Subsidiaries during such period (excluding Capital Expenditures to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes and tax distributions paid in cash by such Person and its Subsidiaries for such period, (vi) Permitted Management Fees described in clause (v) of the definition of Consolidated EBITDA that are paid in cash during such period to the extent such payments are permitted, (vii) (A) amounts added back to Consolidated EBITDA for such period pursuant to clauses (vi), (ix), (x), (xi) and (xiii) of the definition of “Consolidated EBITDA” and (B) any portion of Pro Forma EBITDA added back to Consolidated EBITDA for such period pursuant to clause (xiii) of the definition of “Consolidated EBITDA” that is attributable to periods prior to the consummation of the corresponding Permitted Acquisition and (viii) cash payments during such period that were paid in respect of Permitted Acquisitions, the Funko Earnout, the Funko Earnout Preferred Equity or Permitted Investments pursuant to clause (p) of the definition thereof, in each case, to the extent not financed through the incurrence of Indebtedness (other than Indebtedness constituting a Revolver Credit Extension) or through an Equity Issuance.

 

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Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Exchange Rate ” means the prevailing spot rate of exchange published by Reuters (or, if such rate is not available from Reuters, another similar publicly available source as Administrative Agent may reasonably select) for the purpose of conversion of one currency to another, at or around 11:00 a.m. New York City time, on the date on which any such conversion of currency, or calculation of the Dollar Equivalent of any amount in any non-Dollar currency (or similar calculation of the foreign currency equivalent of any amount in Dollars) is to be made under this Agreement, provided that, notwithstanding the foregoing, in the context of any actual conversion by any Agent or Lender of any funds received by such Agent or Lender (including any collections on any Accounts Receivable received by any Agent of Lender) from one currency to another for the purpose of applying such funds to the Obligations, “Exchange Rate” means the spot-buying or spot-selling rate (as the case may be) rate of exchange at which such Agent or Lender is actually able to exchange the one currency for the other in the exercise of its ordinary business practices regarding foreign currency exchange.

Exchange Risk Reserve ” means, with respect to each Revolving Loan advanced or Letter of Credit issued in one currency in reliance on the value of Collateral denominated in another currency, an amount determined from time to time based on the Dollar Equivalent of the outstanding principal amount of such Revolving Loan or the Maximum Undrawn Amount of such Letter of Credit (in each case, to the extent such amount relies on the value of Collateral denominated in another currency) multiplied by the currency volatility index of the currency in which such Revolving Loan is advances or such Letter of Credit is issued as compared to the currency in which the applicable Collateral is denominated (as such currency volatility index is calculated and determined by Administrative Agent in the ordinary course of its business from time to time).

Excluded Foreign Subsidiary ” means any subsidiary of the Ultimate Parent (i) that is a “controlled foreign corporation” as defined in the Internal Revenue Code, (ii) all or substantially all of the assets of which consist of stock of one or more subsidiaries described in clause (i) above, in each case that has not guaranteed or pledged any of its assets or suffered a pledge of more than 65% of its voting stock to secure, directly or indirectly, any indebtedness of the Loan Parties or (iii) any direct or indirect domestic subsidiary of a direct or indirect foreign subsidiary of the Ultimate Parent (and any direct or indirect domestic subsidiary that is a disregarded entity for U.S. federal income tax purposes if substantially all of its assets consist of the equity or indebtedness of one or more direct or indirect foreign subsidiaries).

Excluded Hedge Liability or Liabilities ” means, with respect to each Borrower and Guarantor, each of its Swap Obligations if, and only to the extent that, all or any portion of this Agreement or any Other Document that relates to such Swap Obligation is or becomes illegal under the CEA, or any rule, regulation or order of the CFTC, solely by virtue of such Borrower’s and/or Guarantor’s failure to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap. Notwithstanding anything to the contrary contained in the

 

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foregoing or in any other provision of this Agreement or any Other Document, the foregoing is subject to the following provisos: (a) if a Swap Obligation arises under a master agreement governing more than one Swap, this definition shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guaranty or security interest is or becomes illegal under the CEA, or any rule, regulations or order of the CFTC, solely as a result of the failure by such Borrower or Guarantor for any reason to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap; (b) if a guarantee of a Swap Obligation would cause such obligation to be an Excluded Hedge Liability but the grant of a security interest would not cause such obligation to be an Excluded Hedge Liability, such Swap Obligation shall constitute an Excluded Hedge Liability for purposes of the guaranty but not for purposes of the grant of the security interest; and (c) if there is more than one Borrower or Guarantor executing this Agreement or the Other Documents and a Swap Obligation would be an Excluded Hedge Liability with respect to one or more of such Persons, but not all of them, the definition of Excluded Hedge Liability or Liabilities with respect to each such Person shall only be deemed applicable to (i) the particular Swap Obligations that constitute Excluded Hedge Liabilities with respect to such Person, and (ii) the particular Person with respect to which such Swap Obligations constitute Excluded Hedge Liabilities.

Excluded Subsidiary ” means any (a) Excluded Foreign Subsidiary, (b) Immaterial Subsidiary, (c) Subsidiary that is prohibited, but only so long as such Subsidiary would be prohibited, by applicable law, rule or regulation or by any contractual obligation existing on (but not incurred in anticipation of) the date such Subsidiary is acquired or organized (as long as, in the case of an acquisition of a Subsidiary, such prohibition did not arise as part of such acquisition) from guaranteeing the Obligations or that would require governmental or regulatory consent, approval, license or authorization to provide a guarantee unless such consent, approval, license or authorization has been received, (d) special purpose entities to the extent reasonably acceptable to the Required Lenders (such acceptance not to be unreasonably withheld, delayed or conditioned), if any, (e) not-for-profit Subsidiaries, if any, or (f) captive insurance companies.

Executive Order No.  13224 ” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Existing Credit Facilities ” means, collectively, (a) the Note Purchase Agreement, dated May 29, 2013, as amended, by and among Funko and Gladstone Business Investment, LLC as successor by assignment from Gladstone Investment Corporation and Gladstone Capital Corporation as successor by assignment from Gladstone Business Loan, LLC and (b) the Credit and Security Agreement, dated as of May 29, 2013, by and among Wells Fargo Bank, National Association, Parent and Funko.

Existing Lenders ” means the lenders and buyers, as applicable, party to the Existing Credit Facilities.

Extended Revolving Credit Commitment ” has the meaning specified therefor in Section 2.11.

 

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Extended Term Loan ” has the meaning specified therefor in Section 2.11.

Extension Amendment ” means an amendment to this Agreement giving effect to the Extension Requests in accordance with Section 2.11.

Extension Election ” has the meaning specified therefor in Section 2.11.

Extension Request ” has the meaning specified therefor in Section 2.11.

Extraordinary Receipts ” means any cash received by the Ultimate Parent or any of its Subsidiaries in respect of (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (d) indemnity payments and (e) any purchase price adjustment received in connection with any purchase agreement in relation to a Permitted Acquisition (other than the Acquisition Agreement).

Facility ” means any real property, including, without limitation, the land on which such facility is located, all buildings and other improvements thereon, all fixtures located at or used in connection with such facility, to the extent owned by any Loan Party, including any New Facility.

FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

FATCA ” has the meaning specified therefor in Section 2.09(e).

Federal Funds Effective Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight Federal funds transactions arranged by Federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided , if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced.

Federal Funds Open Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by Administrative Agent (an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by Administrative Agent at such time (which determination shall be conclusive absent manifest error); provided however, that if such day is not a Business Day, the

 

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Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding Business Day. If and when the Federal Funds Rate changes, the rate of interest hereunder will change automatically without notice to the Borrowers, effective on the date of any such change.

Field Survey and Audit ” means a field survey and audit of the Loan Parties and an appraisal of the Collateral performed by auditors, examiners and/or appraisers selected by the Agents.

Final Maturity Date ” means the earliest of (i) October 30, 2021, (ii) the date on which all Loans shall become due and payable in accordance with the terms of this Agreement, and (iii) the payment in full of all Obligations and the termination of all Commitments.

Financial Statements ” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2014, and the related consolidated statement of operations, shareholders’ equity and cash flows for the Fiscal Year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the nine (9) months ended September 30, 2015, and the related consolidated statement of operations, shareholder’s equity and cash flows for the nine (9) months then ended.

Fiscal Quarter ” means any of the quarterly accounting periods of the Loan Parties ending on or about March 31, June 30, September 30 and December 31 of each year.

Fiscal Year ” means any of the annual accounting periods of the Loan Parties ending on or about December 31 of each year.

Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of (a) the result of (i) Consolidated EBITDA of such Person and its Subsidiaries for such period, minus (ii) the sum of (x) unfinanced Capital Expenditures made by such Person and its Subsidiaries during such period (excluding expenditures representing the purchase price for any Permitted Acquisition or Investment permitted pursuant to clause (p) of the definition thereof), plus (y) cash income taxes paid by such Person and its Subsidiaries during such period, plus (z) all Permitted Management Fees paid in cash by such Person or any of its Subsidiaries to any of its Affiliates during such period, to (b) the sum of (i) all scheduled installments of principal of Indebtedness (excluding any principal payments made in relation to the Funko Earnout or any Funko Earnout Preferred Equity) of such Person and its Subsidiaries paid during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Cash Interest Expense of such Person and its Subsidiaries for such period, plus (iii) cash dividends or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with any merger or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions (A) paid by a Loan Party to any other Loan Party, (B) constituting tax distributions or (C) by Ultimate Parent in relation to the Funko Earnout Preferred Equity, including, without limitation, for purposes of redemptions of the Funko Earnout Preferred Equity) during such period (clauses (b)(i), (b)(ii) and (b)(iii), collectively, “ Fixed Charges ”); provided , that (x) for the fiscal quarter ending March 31, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on March 31, 2016, (y) for the fiscal quarter ending June 30, 2016,

 

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Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on June 30, 2016), and (z) for the fiscal quarter ending September 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on September 30, 2016.

Flow of Funds Agreement ” means a Flow of Funds Agreement, in form and substance reasonably satisfactory to the Agents, by and among the Loan Parties, the Agents and the Lenders, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with this Agreement.

Foreign In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location outside the United States to any location of a Loan Party within the United States.

Funding Losses ” has the meaning specified therefor in Section 2.08.

Funko 2015 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $40,000,000, contingent on the Ultimate Parent achieving at least $60,700,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2015 and payable in 2016 after receipt of the audited financial statements for the 2015 Fiscal Year.

Funko 2016 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $25,000,000, contingent on the Ultimate Parent achieving at least $80,000,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2016 and payable in 2017 after receipt of the audited financial statements for the 2016 Fiscal Year. “ Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

Funko Earnout ” means, collectively, the Funko 2015 Earnout and the Funko 2016 Earnout.

Funko Earnout Preferred Equity ” means SP Units (as defined in the Funko LLC Agreement) of the Ultimate Parent that are issued as a result of the non-payment of the Funko Earnout within 20 Business Days after the applicable Earnout Determination Date (as defined in the Acquisition Agreement) in accordance with Section 2.5 of the Funko LLC Agreement, with rights to receive priority distributions from the Ultimate Parent until the holders thereof have received aggregate distributions equal to any unpaid amounts plus an annual preferred return of 11% for the first 90 day period after issuance, 13% for the next 90 day period and 15% thereafter, accruing daily and compounding annually.

Funko LLC Agreement ” means the limited liability operating agreement of the Funko Acquisition Holdings, L.L.C., dated as of October 30, 2015.

 

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Funko Sellers ” means the sellers under the Acquisition Agreement.

Funko Transaction Costs ” means those certain fees and expense reimbursements to the Permitted Holders in an aggregate amount not to exceed $20,200,000.

GAAP ” means generally accepted accounting principles in effect from time to time in the United States, and as applied on a consistent basis in all subsequent periods; provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements; provided , further , that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in this Agreement, the Agents and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the applicable covenants shall be calculated as if no such change in GAAP has occurred.

Governing Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture agreement, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

Governmental Acts ” has the meaning specified therefor in Section 3.09.

Governmental Authority ” means any nation or government, any Federal, state, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency, authority, division or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Guaranteed Obligations ” has the meaning specified therefor in Section 11.01.

Guarantor ” has the meaning specified therefor in the preamble hereto.

Guaranty ” means (a) the guaranty of each Guarantor party hereto contained in ARTICLE XI hereof and (b) each other guaranty, in form and substance reasonably satisfactory to the Collateral Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders guaranteeing all or part of the Obligations.

 

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Hazardous Material ” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or risk to human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.

Hedge Liabilities ” means the liabilities of the Borrowers under any Hedge Agreement as calculated on a marked-to-market basis in accordance with GAAP.

Hedging Agreement ” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements, and (without limiting the generality of any of the foregoing) specifically including any foreign exchange transaction, including spot and forward foreign currency purchases and sales, listed or over-the-counter options on foreign currencies, non-deliverable forwards and options, foreign currency swap agreements, and currency exchange rate price hedging arrangements), and any confirmation executed in connection with any such agreement or arrangement.

Highest Lawful Rate ” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

Holdout Lender ” has the meaning specified therefor in Section 12.02(b).

In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit.

Immaterial Subsidiary ” means, as of any date, any Subsidiary whose total assets, as of that date, are less than $25,000, provided that total assets of all Immaterial Subsidiaries shall not, in the aggregate, exceed $100,000 as of any date.

 

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Indebtedness ” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables or other current accounts payable incurred in the ordinary course of such Person’s and paid in accordance with historical practices of the Loan Parties (but including earnouts or similar obligations); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all Hedge Liabilities; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations relating to obligations described in clauses (a) through (h) of this definition; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer, except to the extent that such Person is not liable for such Indebtedness.

Indemnified Matters ” has the meaning specified therefor in Section 12.16.

Indemnitees ” has the meaning specified therefor in Section 12.16.

Insolvency Proceeding ” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

Intercompany Subordination Agreement ” means an Intercompany Subordination Agreement made by the Loan Parties in favor of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Agents.

Interest Payment Date ” means (a) as to any Reference Rate Loan denominated in Dollars, the first day of each month, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, each day which is three months after the first day of such Interest Period and the last day of such Interest Period and (d) as to any mandatory prepayment required pursuant to this Agreement, the date of such prepayment.

Interest Period ” means as to any LIBOR Rate Loan made to the Borrowers, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Rate Loan and ending on the date one, two or three months thereafter, as selected by the Administrative Borrower; provided that:

 

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(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which case such Interest Period shall end on the preceding Business Day;

(ii) any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii) the Borrowers may not elect an Interest Period for any Loan which would extend beyond the Final Maturity Date.

Interest Rate Hedging Agreements ” means each interest rate swap or similar Hedging Agreement entered into by a Loan Party with any Agent, Lender or Affiliate thereof with respect to the interest rates on the Loans or any other Permitted Indebtedness permitted under this Agreement.

Interest Rate Hedging Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Interest Rate Hedging Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Agents, any Lender or any Affiliate thereof as a result of Administrative Agent, such Lender or such Affiliate purchasing participations or executing indemnities or reimbursement obligations with respect to the interest rate swap provided to such Person pursuant to the Interest Rate Hedging Agreements. Notwithstanding any of the foregoing, Interest Rate Hedging Obligations shall not include any Excluded Hedge Liabilities.

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

Inventory ” means, with respect to any Person, all inventory (as that term is defined in the Uniform Commercial Code) and all goods and merchandise of such Person, including, without limitation, all raw materials, work-in-process, packaging, supplies, materials and finished goods of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account Receivable or cash.

Investment ” means, with respect to any Person, (x) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts Receivable arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (y) the purchase or

 

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ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (z) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP.

ISP98 Rules ” has the meaning specified therefor in Section 3.02(b).

Joinder Agreement ” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).

L/C Fee Rate ” means 2.50% per annum.

L/C  Issuer ” means PNC or such other bank as the Administrative Agent may select in its Permitted Discretion.

Law(s) ” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.

Lease ” means any lease of real property to which any Loan Party or any of its Subsidiaries is a party as lessor or lessee.

Lender ” has the meaning specified therefor in the preamble hereto.

Lender-Provided Hedge Agreement ” means a Hedging Agreement which is provided by any Lender, Agent or any affiliate thereof. Except to the extent of any Excluded Hedge Liabilities, the Hedge Liabilities of the Borrowers to the provider of any Lender-Provided Hedge Agreement shall be “Obligations” hereunder, guaranteed obligations under any Guaranty and secured obligations under any Security Agreement and otherwise treated as Obligations for purposes of each of the Loan Documents. The Liens securing the Hedge Liabilities shall be pari passu with the Liens securing all other Obligations under this Agreement and the Loan Documents.

Letter of Credit Application ” has the meaning specified therefor in Section 3.02(a).

Letter of Credit Borrowing ” has the meaning specified therefor in Section 3.04.

Letter of Credit Fees ” has the meaning specified therefor in Section 2.06(c).

Letter of Credit Guaranty ” means one or more guaranties by the Administrative Agent in favor of the L/C Issuer guaranteeing or relating to the obligations of the Borrower to the L/C Issuer under a reimbursement agreement, Letter of Credit Application or other like document in respect of any Letter of Credit.

 

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Letter of Credit Obligations ” means, at any time and without duplication, the sum of (a) Reimbursement Obligations with respect to all Letters of Credit at such time, plus (b) the Maximum Undrawn Amount with respect to all Letters of Credit, plus (c) all amounts for which Administrative Agent may be liable to the L/C Issuer pursuant to any Letter of Credit Guaranty with respect to any Letter of Credit.

Letter of Credit Sublimit ” means $3,000,000.

Letters of Credit ” has the meaning specified therefor in Section 3.01.

LIBOR ” means for each LIBOR Rate Loan made to the Borrowers, with respect to each day during the applicable Interest Period, the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by Administrative Agent as an authorized information vendor for the purpose of displaying rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market (a “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such LIBOR Rate Loan and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any LIBOR Alternate Source, a comparable replacement rate determined by Agent at such time (which determination shall be conclusive absent manifest error; provided , that, (i) with respect to the Term Loan, at no time shall LIBOR be less than 1.00% and (ii) with respect to the Revolving Loans, at no time shall LIBOR be less than 0%.

LIBOR Notice ” means a written notice substantially in the form of Exhibit D.

LIBOR Option ” has the meaning specified therefor in Section 2.07(a).

LIBOR Rate ” means, for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by the Administrative Agent (rounded upwards if necessary, to the next 1/100% of 1%) by dividing (i) applicable LIBOR for such Interest Period by (ii) 1.00 minus the Reserve Percentage; provided that such LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.

LIBOR Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the LIBOR Rate.

Lien ” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement intended as, or having the effect of, security.

Loan ” means the Term Loan or any Revolving Loan made by an Agent or a Lender to the Borrowers pursuant to ARTICLE II hereof.

 

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Loan Account ” means an account maintained hereunder by the Administrative Agent on its books of account at the Payment Office, and with respect to the Borrowers, in which the Borrowers will be charged with all Loans made to, and all other Obligations incurred by, the Borrowers.

Loan Document ” means this Agreement, the Security Agreement, any other Security Documents, any Guaranty, any Note, the Intercompany Subordination Agreement, any Joinder Agreement, the Flow of Funds Agreement, any Letter of Credit Application, any Mortgage, the Collateral Assignment, any Bank Product Agreement, and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan, any Letter of Credit Obligation or any other Obligation; provided, however, that for purposes of Section 9.1 hereof, no Interest Rate Hedging Agreement or other Bank Product Agreement shall constitute a Loan Document.

Loan Party ” means any Borrower and any Guarantor.

Management Agreement ” means the professional services agreement dated as of the date hereof by and among ACON Equity Management, L.L.C., a Delaware limited liability company, and Funko, LLC, a Washington limited liability company.

Material Adverse Effect ” means a material adverse effect on any of (a) the operations, business, assets, properties, financial condition or operating results of the Loan Parties taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to fully and timely perform any of their obligations under any Loan Document to which they are parties, (c) the rights and remedies of any Agent or any Lender under any Loan Document, or (d) the validity, perfection or priority of a Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any of the Collateral; provided that, notwithstanding the foregoing, (i) the lack of perfection or priority of any Liens granted to the Collateral Agent solely in respect of Collateral with an aggregate value not in excess of $250,000 (valued at fair market value on Collateral other than cash) shall not be deemed a Material Adverse Effect and (ii) the determination of the existence of any Material Adverse Effect shall not give effect to any consequences of actions of the Agents or any Lender under the Loan Documents.

Material Contract ” means, with respect to any Person, each contract or agreement to which such Person is a party, in respect of which a breach or termination could reasonably be expected to have a Material Adverse Effect.

Maximum Face Amount ” means, with respect to any outstanding Letter of Credit, the face amount of such Letter of Credit including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective, as such face amount or increases are amended from time to time.

Maximum Revolving Loan Amount ” means $50,000,000.

Maximum Undrawn Amount ” means, with respect to any outstanding Letter of Credit, the amount of such Letter of Credit that is or may become available to be drawn, including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective.

 

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Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgage ” means a mortgage, deed of trust or deed to secure debt, in form and substance reasonably satisfactory to the Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and the Lenders, securing the Obligations and delivered to the Collateral Agent.

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its Subsidiaries has contributed to, or has been obligated to contribute, at any time during the preceding six (6) years, excluding any Non-U.S. Plan.

Negotiable Document ” shall mean a Document that is “negotiable” within the meaning of Article 7 of the Uniform Commercial Code.

Net Amount of Eligible Accounts Receivable ” means the aggregate unpaid invoice amount of Eligible Accounts Receivable less, without duplication, sales, excise or similar taxes, returns, discounts, chargebacks, claims, advance payments, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect to such Eligible Accounts Receivable.

Net Cash Proceeds ” means, (a) with respect to any Disposition by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Disposition (other than Indebtedness under this Agreement), (ii) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (iii) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (iv) net income taxes to be paid in connection with such Disposition (after taking into account any tax credits or deductions and any tax sharing arrangements) and (b) with respect to the issuance or incurrence of any Indebtedness by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary in connection therewith, after deducting therefrom only (i) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (ii) transfer taxes paid by such Person or such Subsidiary in connection therewith and (iii) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements); in each case of clause (a) and (b) to the extent, but only to the extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

 

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Net Liquidation Percentage ” shall mean, as of any date of determination, the percentage of the book value of the Borrowers’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be as determined from time to time by an appraisal company selected by the Agents.

New Facility ” has the meaning specified therefor in Section 7.01(o).

New Lending Office ” has the meaning specified therefor in Section 2.09(b)(i).

Non-Qualifying Party ” means any Borrower or any Guarantor that on the Eligibility Date fails for any reason to qualify as an Eligible Contract Participant.

Non-U.S. Lender ” has the meaning specified therefor in Section 2.09(d).

Note ” means each promissory note, if any, issued by the Borrowers to a Lender in accordance with the provisions of this Agreement.

Notice of Borrowing ” has the meaning specified therefor in Section 2.02(a).

Obligations ” means all present and future indebtedness, obligations, and liabilities of each Loan Party to the Agents and the Lenders, the L/C Issuer and the Bank Product Providers arising under or in connection with any of the Loan Documents, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (i) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (ii) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its Permitted Discretion) may elect to pay or advance on behalf of such Person. Notwithstanding any of the foregoing, Obligations shall not include any Excluded Hedge Liabilities.

OFAC Sanctions Programs ” means the laws, regulations and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as it has been or shall thereafter be renewed, extended, amended, or replaced, and the list of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended from time to time.

Operating Lease Obligations ” means all obligations for the payment of rent for any real or personal property under leases or agreements to lease, other than Capitalized Lease Obligations.

Order ” has the meaning specified therefor in Section 3.10.

Other Taxes ” has the meaning specified therefor in Section 2.09(b).

 

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Paid in Full ”, “ Pay in Full ” or “ Payment in Full ” means, with respect to any Obligations, (i) the payment in full in cash (or other consideration acceptable to the recipient thereof) of all such Obligations (other than (x) contingent indemnification obligations to the extent no claim giving rise thereto has been asserted and (y) Hedge Liabilities and Bank Product Obligations that, at the time of determination, are allowed by the Person to whom such Obligations are owing to remain outstanding), (ii) the termination or expiration of all of the Revolving Credit Commitments and (iii) in connection with the termination or expiration of all of the Revolving Credit Commitments, either (x) the cancellation and return to the Administrative Agent of all Letters of Credit or (y) the Cash Collateralization (or the delivery of a back-to-back letter of credit reasonably acceptable to the Administrative Agent) of all Letters of Credit.

Parent ” has the meaning specified therefor in the preamble hereto.

Participant Register ” has the meaning specified therefor in Section 12.07(g).

Participation Commitment ” means each Revolving Loan Lender’s obligation to buy a participation of the Letters of Credit issued hereunder.

Participation Revolving Loan ” has the meaning specified therefor in Section 3.04(c) hereof.

Payment Office ” means Administrative Agent’s office located at Two Tower Center, East Brunswick, New Jersey 08816 or at such other office or offices of Administrative Agent as may be designated in writing from time to time by the Administrative Agent to the Collateral Agent and the Borrower.

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

Perfection Certificate ” means a certificate in form and substance reasonably satisfactory to the Collateral Agent providing information with respect to the property of each Loan Party.

Permitted Acquisition ” means any Acquisition so long as:

(a) No Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition and the proposed Acquisition is consensual;

(b) the Administrative Borrower has provided the Agents with written notice of the proposed Acquisition at least ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition, copies of then available drafts of the acquisition agreement and other material documents relative to the proposed Acquisition (provided that, promptly following the closing and consummation of such Acquisition, Administrative Borrower shall provide Agents with copies of the final executed acquisition agreement and related material documents);

 

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(c) the Administrative Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Acquisition, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents) created by adding the historical combined financial statements of the Ultimate Parent and its Subsidiaries (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, the Ultimate Parent and its Subsidiaries (i) would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are projected to be in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended one year after the proposed date of consummation of such proposed Acquisition;

(d) [intentionally omitted];

(e) the Person to be acquired (or the business represented by the assets to be acquired) is engaged in a business principally located in the United States and permitted to be engaged in by the Loan Parties pursuant to Section 7.02(d) and is joined as a Loan Party pursuant to Section 7.01(b) within the time periods set forth therein;

(f) the board of directors (or other comparable governing body) of such Person and the seller of such Person or assets shall have duly approved the proposed Acquisition;

(g) after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Borrowers shall have (A) Availability on the date of such proposed Acquisition after giving effect thereto of at least $10,000,000, and (B) projected pro forma Availability for the twelve month period after the date of such proposed Acquisition of at least $10,000,000;

(h) the purchase consideration payable (including without limitation, earnout or similar obligations, but excluding (i) consideration payable in shares constituting Qualified Equity Interests of Ultimate Parent, and (ii) any amount funded with Available Equity Proceeds or paid by the issuance of Qualified Equity Interests) in respect of all Permitted Acquisitions shall not exceed $25,000,000 in the aggregate; and

(i) after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00.

Permitted Cure Stock ” has the meaning specified therefor in the last paragraph of Section 9.01.

 

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Permitted Discretion ” means, as to any Agent or Lender, as the case may be, a determination made in good faith and in the exercise of commercially reasonable (from the perspective of a secured asset-based lender) business judgment exercised in accordance with generally applicable practices of such Agent or Lender for transactions of this type.

Permitted Funko Earnout Payments ” means payments (including, without limitation, any partial payments thereof) made by the Loan Parties in relation to Funko Earnout, which payments shall be limited as follows: (a) in the case of the Funko 2015 Earnout, following the payment in cash by the Ultimate Parent of the first $15,000,000 of such Funko 2015 Earnout with the cash proceeds of new equity issued by the Ultimate Parent, the Loan Parties may provide funds for the payment of any remaining obligations in respect of the Funko 2015 Earnout with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for the period from the Effective Date through the end of calendar month recently ended prior to the date of the payment of the Funko 2015 Earnout and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2015 Earnout, Availability would be less than $15,000,000, (b) in the case of the Funko 2016 Earnout, the Loan Parties may provide funds for the payment thereof with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for Fiscal Year 2016 (calculated after giving effect to any Excess Cash Flow mandatory prepayments that are due to the Lenders for Fiscal Year 2016 pursuant to Section 2.05(c)) and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2016 Earnout, Availability would be less than $15,000,000 and (c) any additional amounts in respect of the Funko 2015 Earnout or the Funko 2016 Earnout that are paid either (i) through the issuance of Funko Earnout Preferred Equity or (ii) with the cash proceeds of new equity issued by the Ultimate Parent.

Permitted Holder ” means ACON Equity Management, L.L.C., a Delaware limited liability company, and any other entity owned or controlled by one or more of the managing members of ACON Equity Management, L.L.C. on the Effective Date (“ ACON ”), which are Affiliates and Related Funds that are equity funds to the extent such Persons are controlled, directly or indirectly, by ACON by way of ownership or general partner or managing member relationship.

Permitted Indebtedness ” means:

(a) any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;

(b) any other Indebtedness listed on Schedule 7.02(b), and the extension of maturity, refinancing or modification of the terms thereof; provided , however , that (i) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties in any material respect and the Lenders than the terms of the Indebtedness being

 

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extended, refinanced or modified and (ii) after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification, plus any accrued interest, prepayment premium and refinancing costs, and the amount of unfunded commitments with respect thereto;

(c) Indebtedness evidenced by Capitalized Lease Obligations entered into in order to finance Capital Expenditures, which Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under this clause (c) and clause (d) of this definition, does not exceed $2,000,000 at any time outstanding;

(d) Indebtedness permitted by clause (e) of the definition of “Permitted Lien”;

(e) Indebtedness permitted under Section 7.02(e);

(f) Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds;

(g) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year; and

(h) the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party’s operations and not for speculative purposes;

(i) Subordinated Indebtedness in an aggregate amount not exceeding $5,000,000 at any time outstanding;

(j) Acquired Indebtedness in an amount not to exceed $5,000,000 outstanding at any one time;

(k) Earnout and other similar contingent obligations incurred to a seller in a Permitted Acquisition in an aggregate amount (calculated based on the maximum amount potentially payable with respect to such obligations) outstanding not to exceed at any time the lesser of (i) $5,000,000 for any Permitted Acquisition and (ii) 20% of the cash purchase price of such Permitted Acquisition;

(l) the Funko Earnouts;

(m) the Funko Earnout Preferred Equity; and

(n) other unsecured Indebtedness in an aggregate amount at any one time not to exceed $1,000,000.

 

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Permitted Intercompany Advances ” means Investments made by (a) a Loan Party into another Loan Party (other than the Ultimate Parent), (b) [reserved], (c) a non-Loan Party to another non-Loan Party, (d) a non-Loan Party into a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, and (e) a Loan Party into a non-Loan Party Subsidiary so long as (i) the aggregate outstanding amount of all such Investments made by the Loan Parties following the Effective Date does not exceed $250,000, (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment and (iii) after giving pro forma effect to such proposed intercompany Investment (and any borrowings of Revolving Loans to fund such proposed intercompany Investment), the Borrowers shall have Availability on the date of such proposed intercompany Investment assuming that such intercompany Investment (and any Revolving Loans drawn to fund such intercompany Investment) had been made on the first day of such 30 day period), of at least $10,000,000. Notwithstanding anything to the contrary in this Agreement, in the case of any such Investment described in clause (e) above consisting of a guarantee or other similar Contingent Obligation issued by any Loan Party to support any Indebtedness or other obligations or liabilities of a non-Loan Party, (i) such guarantee or other Contingent Obligation must be unsecured and (ii) the full amount for which such Loan Party is potentially liable under such guarantee or other Contingent Obligation shall be counted against the limitation set forth above for all Investments under clause (e) above.

Permitted Investments ” means:

(a) Investments in cash and Cash Equivalents;

(b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;

(c) advances made in connection with purchases of goods or services in the ordinary course of business;

(d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;

(e) Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;

(f) Permitted Intercompany Advances and Hedging Agreements permitted pursuant to clause (h) of the definition of Permitted Indebtedness;

(g) extensions of trade credit in the ordinary course of business;

(h) Guaranteed Obligations described in Section  11.01 ;

 

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(i) loans and advances to employees, officers and directors of any Loan Party in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Loan Parties not to exceed $100,000 at any one time outstanding;

(j) non-cash loans and advances by Ultimate Parent to employees, officers and directors of any of Ultimate Parent and its Subsidiaries, so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in the Ultimate Parent, the proceeds of which are contributed to the capital of the Parent;

(k) Investments in assets useful in the business of the Borrowers and their Subsidiaries made by a Borrower or any of its Subsidiaries, whether in accordance with Section 2.05(c)(viii) or as a result of the making of Capital Expenditures otherwise permitted hereunder.

(l) [reserved];

(m) [reserved];

(n) Permitted Acquisitions;

(o) [reserved]; and

(p) additional Investments in an aggregate amount not to exceed $3,000,000 during the term of this Agreement (in each case, plus any Available Equity Proceeds), so long as (x) after giving pro forma effect to such proposed Investment the Borrowers shall have (A) Availability on the date of such proposed Investment (assuming that such Investment (and any Revolving Loans drawn to fund such Investment) had been made on the first day of such 30 day period), of at least $10,000,000 and (B) projected pro forma Availability for the twelve month period after the date of such proposed Investment, of at least $10,000,000 and (y) Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Investment, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Investment, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents), (1) the Ultimate Parent and its Subsidiaries would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Investment and (2) the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00; provided that the foregoing clauses (x) and (y) shall not be applicable to Investments pursuant to this clause (p) in an aggregate amount not to exceed $1,000,000 during any Fiscal Year.

Permitted Liens ” means:

(a) Liens securing the Obligations;

(b) Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c);

 

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(c) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 45 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

(d) Liens described on Schedule 7.02(a), provided that (i) no such Lien shall at any time be extended to cover any additional property not subject thereto on the Effective Date and (ii) the principal amount of the Indebtedness secured by such Liens shall not be extended, renewed, refunded or refinanced other than in accordance with clause (b) of the definition of Permitted Indebtedness;

(e) purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition of such equipment; provided , however , that (A) no such Lien shall extend to or cover any other property of any Loan Party or any of its Subsidiaries and (B) the aggregate principal amount of Indebtedness secured by (i) any or all such Liens and (ii) all Indebtedness permitted by clause (c) of Permitted Indebtedness shall not exceed at any one time outstanding $2,000,000;

(f) deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;

(g) easements, zoning restrictions, rights of way, and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business;

(h) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

(i) Liens on real property or equipment securing Indebtedness permitted by subsection (c) of the definition of Permitted Indebtedness;

(j) the title and interest of a lessor, sublessor, licensee or licensor in and to personal property leased or subleased (other than through a capital lease) or licensed, in each case extending only to such personal property;

 

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(k) non-exclusive licenses or sublicenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;

(l) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(k);

(m) (i) contractual rights of setoff in favor of vendors and customers arising in the ordinary course of business, (ii) rights of setoff or bankers’ liens upon deposits of cash in favor of banks, securities intermediaries or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts or security accounts in the ordinary course of business and (iii) Liens in favor of collecting banks arising under Section 4-208 of the UCC;

(n) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;

(o) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;

(p) Liens solely on any cash earnest money deposits made by Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, provided that, the aggregate amount of all such deposits outstanding shall not exceed 20% of the purchase price for the related Permitted Acquisition at any time;

(q) Liens assumed by Borrower or its Subsidiaries in connection with a Permitted Acquisition that secures Acquired Indebtedness, provided that, the Liens permitted pursuant to this clause (q) shall not include (x) any Liens on any Accounts Receivable or Inventory (or the proceeds thereof) of any Loan Party or (y) any “blanket liens” on all or substantially all of the assets of any Loan Party;

(r) The filing of UCC financing statements solely as a precautionary measure in connection with an operating lease, in each case, relating solely to the property that is the subject of such operating lease;

(s) Liens (i) arising out of any consignments of goods belonging to third-parties to Borrowers as consignee or out of any consignments of goods belonging to Borrowers consignor to third-parties entered into by the Borrowers or any of their Subsidiaries in the ordinary course of business, or (ii) incurred by the Borrowers or their Subsidiaries arising under Section 2-505 of the UCC;

(t) Liens applicable to the assets of any Subsidiary of the Borrowers (excluding any Loan Party) that is not organized under the laws of any jurisdiction of the United States, in each case, so long as such Liens secure Indebtedness or other obligations otherwise permitted to be incurred pursuant to the Loan Documents; and

 

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(u) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000.

Permitted Management Fees ” means (a) management or consulting fees payable pursuant to the terms of the Management Agreement in an aggregate amount not to exceed the lesser of (x) $2,000,000 in any Fiscal Year and (y) two percent of Consolidated EBITDA with respect to any Fiscal Year, the payment of which is subordinated to the Obligations on terms and conditions specified in the Management Agreement as in effect on the Effective Date and (b) the reimbursement of third-party out-of-pocket expenses incurred in connection with the Management Agreement.

Permitted Special Activated Amount ” has the meaning specified therefor in Section 2.01(c) .

Permitted Special Inventory Amount ” means, at any time, an amount equal to the lesser of (x) seventy percent (70%) of the Book Value of Eligible Special Inventory of the Borrowers at such time, (y) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Special Inventory of the Borrowers at such time and (z) $15,000,000.

Person ” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.

Plan ” means any Employee Plan or Multiemployer Plan.

PNC ” means PNC Bank, National Association.

Post-Default Rate ” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.00%.

Post-Term Cash Collateral ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit Obligations ” has the meaning specified therefor in Section3.02(d) hereof.

Pro Forma EBITDA ” means, with respect to any assets acquired in a Permitted Acquisition, the amount of such assets’ Consolidated EBITDA for the most recent trailing twelve (12) month period ending as of the last day of the month preceding the closing of the respective Permitted Acquisition for which financial statements are available, adjusted as provided herein. Such amount shall be determined by the Borrowers and shall be subject to the consent of, (x) if, a

 

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quality of earnings report is prepared in accordance with generally accepted standards by a nationally recognized certified public accounting firm, the Collateral Agent or (y) if there is no such quality of earnings report, the Agents acting in good faith (such consent not to be unreasonably withheld or delayed), based upon and derived from financial information delivered to the Agents prior to the consummation of such Permitted Acquisition (Pro Forma EBITDA for such assets acquired in such Permitted Acquisition as calculated and consented to as of such closing being referred to as the “ Initial Pro Forma EBITDA ”). After the closing of such Permitted Acquisition and unless otherwise agreed by the Agents and the Borrowers, Pro Forma EBITDA with respect thereto shall equal Initial Pro Forma EBITDA multiplied by a fraction the numerator of which is 365 minus the number of days after the closing of the Permitted Acquisition included in any period for which financial statements have been delivered and the denominator of which is 365.

For purposes of demonstration only, assuming that a Permitted Acquisition closes on August 1, 2016 and Initial Pro Forma EBITDA has been determined to be $10,000,000, Pro Forma EBITDA with respect to the assets acquired in such Permitted Acquisition for the fiscal period ending September 30, 2016 (assuming financial statements for the period ending September 30, 2016 have been delivered) shall equal:

$10,000,000 x (365 - 60*) / 365 = $   8,350,000

*the number of days elapsed between August 1, 2016 and September 30, 2016.)

Pro Rata Share ” means:

(a) with respect to a Lender’s obligation to (x) make Revolving Loans and receive payments of interest, fees, and principal with respect thereto and (y) participate in Letters of Credit and Reimbursement Obligations with respect to Letters of Credit, to reimburse the L/C Issuer with respect to Letters of Credit, and right to receive payments of fees with respect thereto, the percentage obtained by dividing (A) such Lender’s Revolving Credit Commitment by (B) the Total Revolving Credit Commitment; provided that if the Total Revolving Credit Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s Revolving Loans and its interest in the Letter of Credit Obligations and the denominator shall be the aggregate unpaid principal amount of all Revolving Loans and Letter of Credit Obligations; provided , further , however , that if all of the Revolving Loans have been Paid in Full and Letters of Credit remain outstanding, Pro Rata Share for purposes of clause (y) above shall be determined as if the Revolving Credit Commitments had not been terminated or reduced to zero and based upon the Revolving Credit Commitments as they existed immediately prior to their termination or reduction to zero and also provided in addition that, for purposes of this paragraph (a), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder,

(b) with respect to a Lender’s obligation to make the Term Loan and receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (A) such Lender’s Term Loan Commitment, by (B) the Total Term Loan Commitment, provided that if the Total Term Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loan and the denominator shall be the aggregate unpaid principal amount of the Term Loan,

 

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(c) with respect to all other matters (including, without limitation, the indemnification obligations arising under Section 10.05 and the definition of Required Lenders), the percentage obtained by dividing (i) the sum of such Lender’s Revolving Credit Commitment and the unpaid principal amount of such Lender’s portion of the Term Loans by (ii) the sum of the Total Revolving Credit Commitment and the aggregate unpaid principal amount of the Term Loans, provided that if such Lender’s Revolving Credit Commitment shall have been reduced to zero, such Lender’s Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of such Lender’s Revolving Loans (including Agent Advances) and its interest in the Letter of Credit Obligations and if the Total Revolving Credit Commitment shall have been reduced to zero, the Total Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances) and Letter of Credit Obligations and also provided in addition that, for purposes of this paragraph (e), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder.

Published Rate ” shall mean the rate of interest published each Business Day in the Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then as published in another publication selected by the Administrative Agent).

Qualified ECP Loan Party ” means each Borrower or Guarantor that on the Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or other entity other than a “commodity pool” as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000 or (b) an Eligible Contract Participant that can cause another Person to qualify as an Eligible Contract Participant on the Eligibility Date under Section 1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a “letter of credit or keepwell, support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the CEA.

Qualified Equity Interests ” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

Qualified Cash ” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of a Loan Party or any Subsidiary of a Loan Party that is held in a deposit account subject to a Cash Management Agreement in favor of the Collateral Agent, for the benefit of the Lenders or with respect to which any Agent is the depositary or securities intermediary and that is on deposit with banks, or in securities accounts with securities intermediaries, or any combination thereof.

Real Property Deliverables ” means each of the following agreements, instruments and other documents in respect of each Facility (to the extent requested by the Collateral Agent and relevant to the applicable jurisdiction):

(a) a Mortgage duly executed by the applicable Loan Party,

 

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(b) evidence of the recording of each such Mortgage in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Collateral Agent and the Lenders thereunder;

(c) a Title Insurance Policy or bring-down of the existing Title Insurance Policy with respect to each Mortgage, dated as of the Effective Date;

(d) a current ALTA survey and a surveyor’s certificate, in form and substance reasonably satisfactory to the Collateral Agent, certified to the Collateral Agent and to the issuer of the Title Insurance Policy with respect thereto by a licensed professional surveyor reasonably satisfactory to the Collateral Agent;

(e) a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility’s compliance with all applicable building codes, fire codes, other health and safety rules and regulations, parking, density and height requirements and other building and zoning laws;

(f) an opinion of counsel, reasonably satisfactory to the Collateral Agent, in the state where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Collateral Agent may reasonably request;

(g) Phase I Environmental Site Assessments with respect to such real property, certified to the Collateral Agent by a company reasonably satisfactory to the Collateral Agent;

(h) flood insurance for such Facility if all or a portion of such Facility is located in an area designated by the Federal Emergency Management Agency as an area having special flood hazards (including, without limitation, those areas designated as Zone A or Zone V), and in which flood insurance has been made available under the U.S. National Flood Insurance Program, in an amount equal to the full replacement cost of the buildings, fixtures and personalty located on such real property or such other amount as may be agreed to by Collateral Agent in writing; and

(i) such other agreements, instruments and other documents (including guarantees and opinions of counsel) as the Collateral Agent may reasonably require.

Recipient ” has the meaning specified therefor in Section 2.09(b)(ii).

Reference Bank ” means PNC, its successors or any other commercial bank designated by the Administrative Agent to the Administrative Borrower from time to time.

Reference Rate ” means, on any day, the greatest of (i) the rate of interest publicly announced by the Reference Bank in New York, New York from time to time as its reference rate, base commercial lending rate, which rate may not be the lowest rate then being charged to commercial borrowers by the Reference Bank, (ii) the Federal Funds Open Rate plus 0.50% per annum, (iii) the Daily LIBOR Rate plus 1.00% per annum, so long as a Daily LIBOR Rate is offered, ascertainable and not unlawful, and (iv) 3.00% per annum. The reference rate,

 

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base rate or prime rate is determined from time to time by the Reference Bank as a means of pricing some loans to its borrowers and neither is tied to any external rate of interest or index nor necessarily reflects the lowest rate of interest actually charged by the Reference Bank to any particular class or category of customers. Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.

Reference Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.

Register ” has the meaning specified therefor in Section 12.07(d).

Registered Loans ” has the meaning specified therefor in Section 12.07(d).

Regulation T ,” “ Regulation U ” and “ Regulation X ” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.

Reimbursement Obligations ” has the meaning specified therefor in Section 3.04(b).

Reinvestment Eligible Funds ” has the meaning specified therefor in Section 2.05(c)(viii).

Related Fund ” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person.

Related Party Assignment ” has the meaning specified therefor in Section 12.07(b).

Related Party Register ” has the meaning specified therefor in Section 12.07(d).

Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

Remedial Action ” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.

Replacement Lender ” has the meaning specified therefore in Section 12.02(b).

 

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Reportable Compliance Event ” shall mean that any Covered Entity (x) becomes a Sanctioned Person, or (y) is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or (z) has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual violation of any Anti-Terrorism Law in a manner (with respect to any violation under this clause (z)) that could reasonably be expected to have a Material Adverse Effect.

Reportable Event ” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30 day notice to the PBGC under the regulations promulgated under such Section).

Required Lenders ” means Lenders whose Pro Rata Shares (calculated in accordance with clause (e) of the definition thereof) aggregate at least 51%.

Required Revolving Loan Lenders ” means Revolving Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (a) of the definition thereof) aggregate at least 51%.

Requirements of Law ” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Percentage ” means as of any day the maximum percentage in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).

Reserves ” means, as of any date of determination, such amounts (including, without limitation, the amount of any Bank Product Reserves, any Exchange Risk Reserve, any Dilution Reserve, any Royalty Reserve and any reserves for co-op advertising expenses and discounts for advertising expenses to the extent such expenses and discounts are not otherwise taken into account in determining the net amount of Eligible Accounts Receivable) as the Administrative Agent may from time to time establish in its good faith exercise of its Permitted Discretion (a) to reflect events, conditions, contingencies or risks which (i) adversely affect any Collateral or either Agent’s access thereto, or (ii) adversely affect the priority, perfection or enforceability of any of the security interest of the Agents or any Lender in the Collateral, or (b) in respect of any state of facts which the Administrative Agent reasonably determines to constitute a Default or an Event of Default. The amount of any Reserve established by the Administrative Agent shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserve as reasonably determined by the Administrative Agent. The

 

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Administrative Agent shall provide not less than three (3) days notice to the Administrative Borrower and the Collateral Agent of any new categories of Reserves that may be established after the date hereof and will be available to consult with the Administrative Borrower in connection with the basis for such new categories of Reserves.

Revolving Credit Commitment ” means with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers pursuant to its Revolving Credit Commitment, as applicable, in an aggregate amount pursuant to all such commitments of such Lender not to exceed the amount set forth opposite such Lender’s name in Schedule 1.01(A) hereto, as such amount may be terminated or reduced from time to time in accordance with the terms of this Agreement (and shall also mean, as the context require, any Revolving Credit Commitment of any Lender).

Revolver Credit Extension ” has the meaning specified therefor in Section 2.11.

Revolver Extension Request ” has the meaning specified therefor in Section 2.11.

Revolving Loan ” means the loans made by Revolving Loan Lenders to the Borrowers pursuant to Section 2.01(a)(i).

Revolving Loan Lender ” means a Lender with a Revolving Credit Commitment.

Revolving Loan Obligations ” means any Obligations with respect to the Revolving Loans (including without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Royalty Reserves ” means reserves established by the Administrative Agent in its good faith exercise of its Permitted Discretion against royalty payments due and payable by the Borrowers, it being understood that any such Royalty Reserves shall be limited to (1) 25% in respect of the first $12,500,000 of accrued royalties attributable to Eligible Inventory and (2) 100% in respect of accrued royalties in excess of $12,500,000 attributable to Eligible Inventory.

Sanctioned Country ” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

Sanctioned Person ” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

SEC ” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.

Secured Party ” means any Agent, any Lender, the L/C Issuer, any Bank Product Provider and each other holder of any of the Obligations.

 

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Securities Act ” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Securitization ” has the meaning specified therefor in Section 12.07(i).

Security Agreement ” means a Pledge and Security Agreement, in form and substance satisfactory to the Collateral Agent, made by the Loan Parties in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, as amended, amended and restated, supplemented or otherwise modified from time to time.

Security Documents ” means, collectively, the Security Agreement and the documents listed on Schedule 1.01(B) hereto or otherwise executed and delivered by a Loan Party which purports to grant a Lien in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, in each case as amended, amended and restated, supplemented or otherwise modified from time to time.

Senior Leverage Ratio ” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) the amount of Consolidated Funded Indebtedness of such Person and its Subsidiaries as of the end of such period (excluding any Subordinated Indebtedness of such Person and its Subsidiaries then outstanding) minus Qualified Cash of such Person and its Subsidiaries in excess of $2,000,000 as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for such period.

Senior Officer ” means the President, Chief Executive Officer, Chief Financial Officer or Chief Operating Officer of any Loan Party.

Settlement Period ” has the meaning specified therefor in Section 2.02(d)(i) hereof.

Solvent ” means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person on a going concern basis is not less than the total amount of the liabilities of such Person, (ii) the present fair salable value of the assets of such Person on a going concern basis is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (v) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital .

Standard  & Poor’s ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

Subordinated Indebtedness ” means Indebtedness of any Loan Party the terms of which are reasonably satisfactory to the Agents and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (a) by the

 

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execution and delivery of a subordination agreement, in form and substance reasonably satisfactory to the Agents, or (b) otherwise on terms and conditions (including, without limitation, subordination provisions, payment terms, interest rates, covenants, remedies, defaults and other material terms) reasonably satisfactory to the Agents; it being understood that the following terms in respect of such Indebtedness will be satisfactory to the Agents: (i) no cash principal payments prior to the maturity thereof and payment of cash interest permitted at commercially reasonable rate in absence of continuing Event of Default, (ii) matures at least 180 days after the Final Maturity Date, (iii) subject to customary limited exceptions, indefinite standstill period on the exercise of remedies (whether or not of a type available to unsecured creditors) until the Obligations are Paid in Full, and (iv) unsecured.

Subsidiary ” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.

Swap ” means any “swap” as defined in Section 1a(47) of the CEA and regulations thereunder other than (a) a swap entered into on, or subject to the rules of, a board of trade designated as a contract market under Section 5 of the CEA, or (b) a commodity option entered into pursuant to CFTC Regulation 32.3(a).

Swap Obligation ” means any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap which is also a Lender Provided Hedge Agreement.

Taxes ” has the meaning specified therefor in Section 2.09(a).

Termination Event ” means (a) any event that causes any Loan Party or any of its Subsidiaries to incur liability under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (b) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (c) the institution of proceedings by the PBGC to terminate an Employee Plan, or (d) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.

Term Loan ” means, collectively, the loans made by the Term Loan Lenders to the Borrowers on the Effective Date pursuant to Section 2.01(a)(ii).

 

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Term Loan Commitment ” means, with respect to each Lender, the commitment of such Lender to make the Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A) hereto, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.

Term Loan Lender ” means a Lender with a Term Loan Commitment.

Term Loan Installment ” has the meaning assigned to such term in Section 2.03(b).

Term Loan Obligations ” means any Obligations with respect to the Term Loans (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Title Insurance Policy ” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Collateral Agent, together with all endorsements made from time to time thereto, issued by or on behalf of a title insurance company reasonably satisfactory to the Collateral Agent, insuring the Lien created by a Mortgage in an amount and on terms reasonably satisfactory to the Collateral Agent, delivered to the Collateral Agent.

Total Commitment ” means the sum of the Total Revolving Credit Commitment and the Total Term Loan Commitment.

Total Revolving Credit Commitment ” means an amount equal to Maximum Revolving Loan Amount in effect from time to time, and shall also mean, as the context may require, the collective obligations of all Revolving Loan Lenders pursuant to their respective Revolving Credit Commitments.

Total Term Loan Commitment ” means, collectively, the sum of the amounts of the Lenders’ Term Loan Commitments.

Transferee ” has the meaning specified therefor in Section 2.09(a).

TTM Consolidated EBITDA ” means, with respect to any Person for any period, the Consolidated EBITDA of such Person and its Subsidiaries for the trailing twelve-month period then ended.

UCP 600 ” has the meaning specified therefor in Section 3.02(b).

Uniform Commercial Code ” has the meaning specified therefor in Section 1.04.

Unused Line Fee ” has the meaning specified therefor in Section 2.06(b).

USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

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WARN ” has the meaning specified therefor in Section 6.01(z).

Section 1.02 Terms Generally . The definitions of terms herein shall apply equally to 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” 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.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) 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 hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

Section 1.03 Certain Matters of Construction . References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders or by each Lender affected thereby or by all Lenders, as applicable. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent (or any subagent or designee or delegee of any Agent), any agreement entered into by any Agent (or any subagent or designee or delegee of any Agent) pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent (or any subagent or designee or delegee of any Agent) pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent (or any subagent or designee or delegee of any Agent), shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders (including each Bank Product Provider). Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to the actual knowledge of a Senior Officer of any Loan Party. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

 

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Section 1.04 Accounting and Other Terms .

(a) Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP applied on a basis consistent with those used in preparing the Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Ultimate Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. Unless otherwise expressly provided herein, all financial calculations shall be performed with Inventory valued on a first-in, first-out basis and (ii) calculations shall be made so as to exclude (without duplication of any adjustments otherwise provided in the calculation of amounts and ratios) the effect of purchase accounting adjustments associated with the Acquisition or any Permitted Acquisition.

(b) All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “ Uniform Commercial Code ”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.

Section 1.05 Time References; Notices . Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided , however , that with respect to a computation of fees or interest payable to any Agent, any Lender or the L/C Issuer, such period shall in any event consist of at least one full day. Any notice or report specified to be due hereunder on a date that is not a Business Day shall be due on next Business Day following such due date.

Section 1.06 Effectiveness of the Borrowers . The Buyer shall be the initial Borrower under this Agreement. Immediately upon consummation of the Funko Acquisition, the execution and delivery of the signature pages of the Borrowers to this Agreement shall become effective and Parent and Funko shall also become Borrowers.

 

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ARTICLE II.

THE LOANS

Section 2.01 Commitments . (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth:

(i) each Revolving Loan Lender severally agrees to make Revolving Loans in Dollars to the Borrowers at any time and from time to time from the Effective Date to the Final Maturity Date, or until the earlier reduction of its Revolving Credit Commitment to zero in accordance with the terms hereof, in an aggregate principal amount of Revolving Loans at any time outstanding not to exceed the amount of such Lender’s Revolving Credit Commitment.

(ii) each Term Loan Lender severally agrees to make its portion of the Term Loan in Dollars to the Borrowers on the Effective Date, in an aggregate principal amount not to exceed the amount of such Lender’s Term Loan Commitment.

(b) Notwithstanding the foregoing:

(i) The aggregate principal amount of all Revolving Loans outstanding at any time to the Borrowers shall not exceed the lower of (A) the difference between (x) the Total Revolving Credit Commitment and (y) the aggregate Letter of Credit Obligations and (B) the difference between (x) the then current Borrowing Base and (y) the aggregate Letter of Credit Obligations.

(ii) Each Revolving Credit Commitment of each Lender shall automatically and permanently be reduced to zero on the Final Maturity Date. Within the foregoing limits, the Borrowers may borrow, repay and reborrow Revolving Loans, on or after the Effective Date and prior to the Final Maturity Date, subject to the terms, provisions and limitations set forth herein.

(iii) The aggregate principal amount of the Term Loan made on the Effective Date shall not exceed the Total Term Loan Commitment. Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.

(iv) The aggregate principal amount of all Loans and Letter of Credit Obligations outstanding at any time to the Borrowers shall not exceed the Total Commitment.

(c) At any time upon the delivery of not less than three (3) Business Days’ prior written notice to the Administrative Agent, the Administrative Borrower may on one or more occasions, elect to activate the inclusion of Eligible Special Inventory in the Borrowing Base in an aggregate amount at any time of up to $15,000,000, with each such election being subject to the following terms and conditions: (i) such amount may be activated in a minimum amount of $5,000,000 and in larger amounts that are integral multiples of $5,000,000 in excess thereof; (ii) as a condition to each activation pursuant to clauses (i) or (iii), the Borrowers shall pay an activation fee of 0.50% on the incremental amount being activated pursuant to such

 

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clauses at such time; and (iii) each activation pursuant to this clause (c) shall remain in effect for a period of one (1) year following the date that such activation becomes effective, and may be renewed annually for an additional period of one (1) year subject the payment of an additional activation fee pursuant to clause (ii). The aggregate activated amounts at any time elected and in effect pursuant to this Section 2.01(c) is referred to herein as the “ Permitted Special Activated Amount ”.

Section 2.02 Making the Loans . (a) An Authorized Officer on behalf of the Administrative Borrower, as applicable, shall (I) give the Administrative Agent prior telephonic notice immediately confirmed in writing in substantially the form of Exhibit C hereto (a “ Notice of Borrowing ”), not later than (i) 12:00 noon (New York City time) on the date which is three (3) applicable Business Days prior to the date of a proposed LIBOR Rate Loan or (ii) 12:00 noon (New York City time) on the date of a proposed Reference Rate Loan on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan (which shall be denominated in Dollars), (ii) in the case of Loans requested on the Effective Date, whether such Loan is requested to be a Revolving Loan or the Term Loan, (iii) whether the Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of any such LIBOR Rate Loan, the initial Interest Period with respect thereto, (iv) the use of the proceeds of such proposed Loan, (v) the proposed borrowing date, which must be an applicable Business Day, and, with respect to the Term Loan, must be the Effective Date. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from any Authorized Officer of Administrative Borrower designated in writing to the Administrative Agent. Each Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Loan on behalf of the Borrowers until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.

(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith. Each Revolving Loan that is a LIBOR Rate Loan shall be made in a minimum amount of $1,000,000 and shall be in integral multiples of $250,000 in excess thereof. The Borrowers shall have not more than seven (7) LIBOR Rate Loans made to the Borrowers in effect at any given time. For the avoidance of doubt, each Revolving Loan that is a Reference Rate Loan shall not be required to be made in a minimum increment amount.

(c) (i) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the applicable Lenders simultaneously and proportionately to their Pro Rata Shares of the applicable Total Revolving Credit Commitment and Total Term Loan Commitment of each such Lender, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.

 

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(ii) Notwithstanding any other provision of this Agreement, and in order to reduce the number of fund transfers among the Borrowers, the Agents and the Lenders, the Borrowers, the Agents and the Lenders agree that the Administrative Agent may (but shall not be obligated to), and the Borrowers and the Lenders hereby irrevocably authorize the Administrative Agent to, fund, on behalf of the Revolving Loan Lenders, pursuant to Section 2.01, subject to the procedures for settlement set forth in Section 2.02(d); provided , however , that (a) the Administrative Agent shall in no event fund any such Revolving Loans if the Administrative Agent shall have received written notice from the Collateral Agent or the Required Lenders on the Business Day prior to the date of such proposed Revolving Loan that one or more of the conditions precedent contained in Section 5.02 will not be satisfied at the time of such proposed Revolving Loan, and (b) the Administrative Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 5.02 have been satisfied. If the Administrative Borrower gives a Notice of Borrowing requesting a Revolving Loan, and the Administrative Agent elects not to fund such Revolving Loan, on behalf of the Revolving Loan Lenders, then promptly after receipt of the Notice of Borrowing requesting such a Revolving Loan, the Administrative Agent shall notify each Revolving Loan Lender of the specifics of such requested Revolving Loan and that it will not fund such requested Revolving Loan on behalf of such Revolving Loan Lenders. If the Administrative Agent notifies such Revolving Loan Lenders that it will not fund a requested Revolving Loan, on behalf of such applicable Revolving Loan Lenders, each such applicable Revolving Loan Lender shall make its Pro Rata Share of the requested Revolving Loan, available to the Administrative Agent, in immediately available funds, in the applicable Administrative Agent’s Account no later than 3:00 p.m. (New York City time) (provided that the Administrative Agent requests payment from such applicable Revolving Loan Lender not later than 1:00 p.m. (New York City time)) on the date of the proposed Revolving Loan. The Administrative Agent will make the proceeds of the Revolving Loans available to the Borrowers on the day of such proposed Revolving Loan by causing an amount, in immediately available funds, equal to the proceeds of all such Revolving Loans received by the Administrative Agent in the applicable Administrative Agent’s Account or the amount funded by the Administrative Agent on behalf of the applicable Revolving Loan Lenders to be deposited in an account designated by the Administrative Borrower.

(iii) If the Administrative Agent has notified the Revolving Loan Lenders, that the Administrative Agent, on behalf of the Revolving Loan Lenders, will not fund a particular Revolving Loan, pursuant to Section 2.02(c)(ii), the Administrative Agent may assume that each such Revolving Loan Lender has made such amount available to the Administrative Agent on such day and the Administrative Agent, in its sole discretion, may, but shall not be obligated to, cause a corresponding amount to be made available to the Borrowers on such day. If the Administrative Agent makes such corresponding amount available to the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by any such Revolving Loan Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid

 

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such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made to the Borrowers, by the Administrative Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account.

(iv) Nothing in this Section 2.02(c) shall be deemed to relieve any Revolving Loan Lender from its obligations to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

(d) (i) With respect to all periods for which the Administrative Agent has funded Revolving Loans pursuant to Section 2.02(c), on Friday of each week, or if the applicable Friday is not a Business Day, then on the following Business Day, or such shorter period as the Administrative Agent may from time to time select (any such week or shorter period being herein called a “ Settlement Period ”), the Administrative Agent shall notify each Revolving Loan Lender, of the unpaid principal amount of the Revolving Loans outstanding as of the last day of each such Settlement Period. In the event that such amount is greater than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period (or, if there has been no preceding Settlement Period, the amount of the Revolving Loans made on the date of such Revolving Loan Lender’s initial funding), each Revolving Loan Lender shall promptly (and in any event not later than 2:00 p.m. (New York City time) if the Administrative Agent requests payment from such Lender not later than 1:00 p.m. (New York City time) on such day) make available to the Administrative Agent its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In the event that such amount is less than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period, the Administrative Agent shall promptly pay over to each Revolving Loan Lender its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In addition, if the Administrative Agent shall so request at any time when a Default or an Event of Default shall have occurred and be continuing, or any other event shall have occurred as a result of which the Administrative Agent shall determine that it is desirable to present claims against the Borrowers for repayment, each Revolving Loan Lender shall promptly remit to the Administrative Agent or, as the case may be, the Administrative Agent shall promptly remit to each Revolving Loan Lender sufficient funds to adjust the interests of the Revolving Loan Lenders in the then outstanding Revolving Loans to such an extent that, after giving effect to such adjustment, each such Revolving Loan Lender’s interest in the then outstanding Revolving Loans will be equal to its Pro Rata Share thereof. The obligations of the Administrative Agent and each Revolving Loan Lender under this Section 2.02(d) shall be absolute and unconditional. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans which have been funded by such Revolving Loan Lender.

 

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(ii) In the event that any Revolving Loan Lender fails to make any payment required to be made by it pursuant to Section 2.02(d)(i), the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan by the Administrative Agent to the Borrowers for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account. Nothing in this Section 2.02(d)(ii) shall be deemed to relieve any Revolving Loan Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

Section 2.03 Repayment of Loans; Evidence of Debt . (a) The outstanding principal of all Revolving Loans made to the Borrowers shall be due and payable on the Final Maturity Date.

(b) The outstanding principal amount of the Term Loan shall be repayable in consecutive quarterly installments equal to $1,650,000 per quarter, with each such installment to be due and payable on the last day of each quarter commencing on March 31, 2016 until the Final Maturity. The outstanding unpaid principal amount of the Term Loan and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (i) the termination of the Total Revolving Credit Commitment, (ii) the date of the acceleration of the Term Loans in accordance with the terms hereof and (iii) the Final Maturity Date.

(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(e) The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided 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 obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement.

 

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(f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a form furnished by the Collateral Agent and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.04 Interest .

(a) Revolving Loans . Subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan, shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each such Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus 2.00%. Each such Revolving Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for such Loan plus 2.50%.

(b) Term Loan . Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each portion of the Term Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the Reference Rate plus 6.25%. Each portion of the Term Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for the Term Loan (or such portion thereof) plus 7.25%.

(c) Default Interest . To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the election of either Agent or the Required Lenders and notice to the Administrative Borrower of such election following the occurrence and during the continuance of an Event of Default (which election and notification shall not be required with respect of any Event of Default described in Section 9.01(a), (f) or (g)), as of the date of any such Event of Default (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower), (i) the principal of, and all accrued and unpaid interest on, all Loans, fees, indemnities, outstanding Letter of Credit Obligations or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower) until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate, and (ii) the Letter of Credit Fees shall be increased by two (2.0%) percentage points above the per annum rate otherwise applicable hereunder. All interest and other amounts payable pursuant to subclauses (i) and (ii) of this Section 2.04(e) shall be payable on demand.

 

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(d) Interest Payment . Interest on each Loan shall be payable on each Interest Payment Date, commencing on the first Interest Payment Date following the month in which such Loan is made and at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder.

(e) General . All interest and fees shall be computed on the basis of a year of 360 days (except that interest on Reference Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year)) for the actual number of days, including the first day but excluding the last day, elapsed.

Section 2.05 Reduction of Commitment; Prepayment of Loans .

(a) Reduction of Commitments.

(i) Revolving Credit Commitments . The Total Revolving Credit Commitment shall terminate on the Final Maturity Date. The Borrowers may, without premium or penalty, reduce the Total Revolving Credit Commitment to an amount (which may be zero) not less than the sum of (A) the aggregate unpaid principal amount of all Revolving Loans then outstanding, (B) the aggregate principal amount of all Revolving Loans not yet made as to which a Notice of Borrowing has been given by the Administrative Borrower under Section 2.02, (C) the Letter of Credit Obligations at such time and (D) the stated amount of all Letters of Credit not yet issued as to which a request has been made and not withdrawn; provided that in no event shall the Borrowers be permitted to reduce the Total Revolving Credit Commitment to an amount less than $25,000,000 (other than a permanent reduction of the Total Revolving Credit Commitment to zero). Each such reduction (1) shall be in an amount which is an integral multiple of $1,000,000 (unless the Total Revolving Credit Commitment in effect immediately prior to such reduction is less than $1,000,000), (2) shall be made by providing not less than 5 Business Days’ prior written notice to the Administrative Agent, (3) shall be irrevocable and (4) shall be accompanied by the payment of the Applicable Prepayment Premium, if any, payable in connection with such reduction of the Total Revolving Credit Commitment (which shall be paid to Administrative Agent for the benefit of the Revolving Loan Lenders and shall be allocated among the Revolving Loan Lenders as they may separately agree among themselves). Once reduced, the Total Revolving Credit Commitment may not be increased. Each such reduction of the Total Revolving Credit Commitment shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance its Pro Rata Share.

(ii) Term Loan . The Total Term Loan Commitment shall terminate at 5:00 p.m. (New York City time) on the Effective Date.

 

 

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(b) Optional Prepayment .

(i) Revolving Loans . At any time and from time to time, the Borrowers may prepay the principal of any Revolving Loan, in whole or in part. Each prepayment made pursuant to this clause (b)(i) made in connection with a reduction of the Total Revolving Credit Commitment pursuant to clause (a)(i) above shall be accompanied by the payment of the Applicable Prepayment Premium, if any.

(ii) Term Loans . The Borrowers may, at any time and from time to time, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, prepay the principal of the Term Loans, in whole or in part, so long as, after giving pro forma effect to such proposed payment, the Borrowers shall have Availability on the date of such proposed payment, and also average Availability over the 30 days ending with the date of such proposed payment (assuming that such proposed payment (and any Revolving Loans drawn to fund such proposed payment) had been made on the first day of such 30 day period), of at least $10,000,000. Each prepayment made pursuant to this clause (b)(ii) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid and (B) the Applicable Prepayment Premium, if any, payable in connection with such prepayment of the Term Loans. Each such prepayment shall be applied ratably to the Term Loan against the remaining installments of principal due thereon until Paid in Full, at the Borrowers’ option, either in the order of maturity as to the installments due with respect to the Term Loans or in the inverse order of maturity as the Administrative Borrower may elect and designate in writing.

(iii) Termination of Agreement . Notwithstanding anything to the contrary in this Section 2.05, upon at least ten (10) days prior written notice to the Administrative Agent, the Administrative Borrower may terminate this Agreement by Paying in Full to the Administrative Agent the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement, and the Lenders’ obligations to extend credit hereunder shall terminate concurrently with such repayment. The Borrowers shall be obligated to Pay in Full the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement on the date set forth as the date of termination of this Agreement in such notice; provided that such notice of termination may be rescinded (and/or updated to provide a new payoff date) by the Administrative Borrower if any transaction involving the refinancing or repayment of the Obligations fails to close.

(c) Mandatory Prepayment .

(i) Overadvances . The Borrowers will not later than five (5) Business Days after the occurrence thereof, prepay the Revolving Loans or provide Cash Collateral up to the outstanding amount of the Letter of Credit Obligations at any time when the aggregate principal amount of all Revolving Loans plus the outstanding amount of all Letter of Credit Obligations exceeds the Borrowing Base, to the full extent of any such excess. If at any time after the Borrowers have complied with the first sentence of this Section 2.05(c)(i), the aggregate Letter of Credit Obligations are greater than the then current Borrowing Base, the Borrowers shall provide Cash Collateral of such excess to the Administrative Agent. Such Cash Collateral shall be deposited in a bank account subject to a Cash Management Agreement in favor of the Collateral Agent and, provided that no Event of Default shall have occurred and be continuing, returned to the Borrowers, at such time as (x) the aggregate Letter of Credit Obligations plus the aggregate principal amount of all outstanding Revolving Loans no longer exceeds the Borrowing Base and (y) the aggregate Letter of Credit Obligations no longer exceed the Letter of Credit Sublimit, as determined by the Administrative Agent.

 

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(ii) Commitment Termination . The Borrowers will immediately prepay the outstanding principal amount of the Term Loans in the event that the Total Revolving Credit Commitment is terminated in accordance with the terms hereof for any reason.

(iii) Cash Dominion . Subject to Section 4.01, at such time as the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d), the Administrative Agent shall on each Business Day apply all funds transferred to or deposited in the Administrative Agent’s Account to the payment, in whole or in part, of the Revolving Loans (or, in the event the Revolving Loans have been paid in full, to the Cash Collateralization of any outstanding Letters of Credit).

(iv) Excess Cash Flow . Within five (5) days of the date on which audited annual financial statements are required to be delivered pursuant to Section  7.01(a)(iii) (the “ ECF Due Date ”), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ending on December 31, 2016 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section  7.01(a)(iii) , five (5) days after the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section  7.01(a)(iii) , the Borrowers shall prepay the outstanding principal amount of the Loans in an amount equal to the result of (to the extent positive): (A) 50% (or (x) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.75:1.00 but greater than or equal to 2.00:1.00, 25% or (y) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.00:1.00, 0%) of the Excess Cash Flow of the Ultimate Parent and its Subsidiaries for such Fiscal Year; provided , that, until such time that at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), (1) the percentage in subclause (A) above shall be increased from 50% to 60% and (2) the percentage in clause (A)(x) above shall be increased from 25% to 35%, minus (B) at any time after at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), the aggregate principal amount of all additional voluntary prepayments of the Term Loans made during such Fiscal Year (or during the 90 days prior to the ECF Due Date) but only to the extent such prepayments (x) were applied against the remaining Term Loan Installments in the order required pursuant to Section 2.05(d) in relation to prepayments required under this clause (iv) and (y) were not previously applied to reduce any other payment pursuant this clause (iv).

(v) Dispositions . Subject to Section 2.05(c)(viii) below, not later than one (1) Business Day following any Disposition by any Loan Party pursuant to Sections 7.02(c)(ii)(B) and 7.02(c)(ii)(C), the Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by the Loan Parties (and not paid to the Administrative Agent as a prepayment of the applicable Loans) shall exceed for all such Dispositions, $500,000 in any Fiscal Year. Nothing contained in this Section 2.05(c)(v) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).

 

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(vi) Debt Issuances . Not later than one (1) Business Day following the issuance or incurrence by any Loan Party of any Indebtedness (other than Permitted Indebtedness), the Borrowers shall prepay the outstanding amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith The provisions of this Section 2.05(c)(vi) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.

(vii) Casualty and Condemnation. Subject to Section 2.05(c)(viii) below, not later than one (1) Business Day following the receipt by any Loan Party of any casualty insurance (other than business interruption insurance) or condemnation proceeds in respect of any Collateral in excess of $500,000 in any Fiscal Year, the Borrowers shall prepay the outstanding principal of the Obligations in accordance with clause (d) below in an amount equal to 100% of such insurance or condemnation proceeds, net of any reasonable expenses incurred in collecting such insurance or condemnation proceeds, provided that the threshold referred to above shall not be applicable to limit repayment obligations under this Section 2.05(vii) at any time when an Event of Default has occurred and is continuing.

(viii) Reinvestment Rights . Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party in connection with a Disposition or the receipt of insurance proceeds or condemnation awards that are required to be used to prepay the Obligations pursuant to Section 2.05(c)(v) or 2.05(c)(vii), as the case may be, up to $5,000,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions (except that the foregoing limitation shall not apply to proceeds received from the Disposition of obsolete, worn out or surplus equipment in the ordinary course pursuant to Section 7.02(c)(ii)(B) hereof) (collectively, the “ Reinvestment Eligible Funds ”) shall not be required to be so used to prepay the Obligations to the extent that such Reinvestment Eligible Funds are used to purchase, replace, repair, restore or otherwise acquire properties or assets used in such Person’s business, provided that, (i) no Default or Event of Default has occurred and is continuing on the date such Person receives such Reinvestment Eligible Funds, (ii) the Administrative Borrower delivers a certificate to the Administrative Agent pursuant to Section 7.01(a)(iv), (iii) such Reinvestment Eligible Funds are deposited in a Cash Management Account, and (iv) upon the earlier of (a) the expiration of 180-day period following the receipt of such Reinvestment Eligible Funds or (b) the occurrence of a Default or an Event of Default, such Reinvestment Eligible Funds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(v) or Section 2.05(c)(vii) as applicable.

(d) Application of Payments . Each prepayment pursuant to subsections (c)(iii),(c)(iv), (c)(v), (c)(vi), (c)(vii) and (c)(viii) above shall be applied, first , to the applicable Term Loans, and second , to the Revolving Loans, except that proceeds of casualty insurance and non-ordinary course dispositions with respect to Inventory shall be applied, first, to the Revolving Loans (without any reduction in the Total Revolving Credit Commitment or any applicable Revolving Credit Commitment) and, second, to the applicable Term Loans. Prepayments of the Term Loan pursuant to Section 2.05(c) shall be applied against the next four quarters of scheduled amortization in respect of the Term Loan, with the balance applied to Term Loan in the inverse order of maturity.

 

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Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, prepayments required under Section 2.05(c) shall continue to be applied in the manner set forth in this Section 2.05(d), unless the Administrative Agent has elected to, or has been directed by the Collateral Agent to, apply payments and other proceeds of Collateral in accordance with Section 4.03(b), in which case prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b).

(e) Interest and Fees . Any prepayment made pursuant to this Section 2.05 (other than prepayments made pursuant to subsections (c)(i) and (c)(iii) of this Section 2.05) shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) if applicable pursuant to Section 2.06(e) , the Applicable Prepayment Premium, payable in connection with such prepayment of the Loans and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero at a time when the Total Revolving Credit Commitment has been terminated, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.

(f) Cumulative Prepayments . Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.

Section 2.06 Fees .

(a) Closing Fee . On or prior to the Effective Date, the Borrowers shall pay to the Administrative Agent for the account of the Lenders, in accordance with a written agreement among such Lenders, a non-refundable closing fee (the ” Closing Fee ”) equal to $6,500,000, which shall be deemed fully earned when paid.

(b) Unused Line Fee . From and after the Effective Date and until the Final Maturity Date, the Borrowers shall pay to the Administrative Agent for the account of the Revolving Loan Lenders, to be allocated among the Revolving Loan Lenders as they may separately agree among themselves, an unused line fee in Dollars (the ” Unused Line Fee ”), which shall accrue at the rate per annum of 0.375% on the average daily excess, if any, of the Maximum Revolving Loan Amount over the average principal amount of all Revolving Loans and Letter of Credit Obligations outstanding from time to time and shall be payable quarterly in arrears on the first day of each calendar quarter commencing January 1, 2016 and on the Final Maturity Date (and, for the avoidance of doubt, and without limiting the generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Unused Line Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Unused Line Fee so charged on any date).

 

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(c) Letter of Credit Fees . The Borrowers shall pay (A) to the Administrative Agent, for the ratable benefit of the Revolving Loan Lenders, a Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in clause (B) below) which shall accrue at a rate per annum equal to the L/C Fee Rate in effect at such time, times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter commencing January 1, 2016 and on the Final Maturity Date, and (B) to the Administrative Agent, for the benefit of the L/C Issuer, a fronting fee of one quarter of one percent (0.25%) per annum times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter and on the Final Maturity Date, together with any and all customary administrative, issuance, amendment, payment and negotiation charges (as per the L/C Issuer’s standard fee schedule) with respect to any Letters of Credit and all fees and expenses as agreed upon by the L/C Issuer and the Borrowers in connection with any Letter of Credit, including in connection with the opening, amendment or renewal of any such Letter of Credit and any acceptances created thereunder and shall reimburse Administrative Agent for any and all fees and expenses, if any, paid by the Administrative Agent to the L/C Issuer, which charges and fees shall be payable on demand or as otherwise mutually agreed upon by the Administrative Agent and the Borrowers. All such charges shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Any such charge in effect at the time of a particular transaction shall be the charge for that transaction, notwithstanding any subsequent change in the L/C Issuer’s prevailing charges for that type of transaction;

(all of the foregoing fees and charges in paragraphs collectively, the “ Letter of Credit Fees ”). All such Letter of Credit Fees shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Without limiting the generality of the provisions of Section 4.01, the parties hereto agree that, for administrative convenience, Administrative Agent may charge the Loan Account of the Borrowers with the amount of a Revolving Loan made as a Reference Rate Loan on the date any such Letter of Credit Fees with respect to any Letter of Credit are due and payable for the purpose of paying such Letter of Credit Fees; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge.

(d) Loan Servicing Fee . From and after the Effective Date and until the later of (i) the Final Maturity Date and (ii) the date on which all Obligations are Paid in Full, the Borrowers shall pay to the Administrative Agent for the account of the Agents a non-refundable loan servicing fee (the ” Loan Servicing Fee ”) equal to $20,000 each quarter, which shall be payable quarterly in advance on the Effective Date and on the first day of each calendar quarter thereafter, commencing on January 1, 2016 (in the case of the fee paid on the Effective Date, it shall be payable ratably based on the number of days remaining in the calendar quarter in which the Effective Date occurs). For the avoidance of doubt, and without limiting the

 

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generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Loan Servicing Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Loan Servicing Fee so charged on any date.

(e) Applicable Prepayment Premium . In the event of the full or partial termination of this Agreement and repayment of the Obligations at any time prior to the Final Maturity Date, for any reason, including (i) termination upon the election of the Required Lenders to terminate after the occurrence and during the continuation of an Event of Default (or, in the case of the occurrence of any Event of Default described in Section 9.01(f) or Section 9.01(g) with respect to any Loan Party, automatically upon the occurrence thereof), (ii) foreclosure and sale of Collateral, (iii) sale of the Collateral in any Insolvency Proceeding, or (iv) restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Agents and the Lenders, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their respective Pro Rata Shares, the Applicable Prepayment Premium, measured as of the date of such termination. Notwithstanding the foregoing, no Applicable Prepayment Premium shall be due and owing (a) in connection with a Term Loan prepayment resulting from the events described in Section 2.05(c)(iv) or (vii), (b) to any Lender that finances (or any Affiliate of such Lender that finances) the voluntary termination of this Agreement pursuant Section 2.05(b)(iii), (c) prepayments with the proceeds of Permitted Cure Stock, (d) prepayments of Revolving Loans that are not accompanied by a termination of the Revolving Credit Commitment, (e) any prepayment of the Term Loan pursuant to Section 2.05(b)(ii) during the first eighteen (18) months after the Effective Date, to the extent the aggregate principal amount of all such prepayments during such period is less than $10,000,000 and (f) in connection with any voluntary prepayment of the Term Loans pursuant to Section 2.05(b)(ii) to the extent such prepayment occurs within 90 days prior to the date on which Excess Cash Flow is required to be applied to the Loans in accordance with Section 2.05(c)(iv); provided that the Applicable Prepayment Premium shall be due and owing on any portion of such voluntary prepayment described in this clause (f) that exceeds the amount of the corresponding Excess Cash Flow payment with respect to which such voluntary prepayment is deducted.

(f) Audit and Collateral Monitoring Fees . The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the Agents may visit any or all of the Loan Parties and/or conduct certain audits, inspections, appraisals, valuations and/or field examinations for which the Borrowers will be obligated to reimburse expenses of the Agents and such representatives. The Borrowers agree to pay such expenses, which shall be calculated on the basis of (i) $1,000 per day per examiner plus the examiner’s reasonable out-of-pocket costs and expenses incurred in connection with all such visits, audits, inspections, appraisals, valuations and field examinations, (ii) a supervisory review fee of $1,300 per each such audit, inspection, valuation or field examination and (iii) the cost of all visits, audits, inspections,

 

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appraisals, valuations and field examinations conducted by a third party on behalf of the Agents. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to pay the fees, costs and expenses for more than three (3) such audits, inspections, valuations and/or field examinations described in clauses (i), (ii) and (iii), in each case conducted during each consecutive twelve (12) month period during the term of this Agreement, provided that Borrowers acknowledge that Administrative may elect to conduct such three (3) audits, inspections, valuations or field examinations with respect to Borrowers during any such consecutive twelve (12) month period at different times, and further provided that, nothing contained in this sentence or otherwise in this Agreement limiting Borrowers’ obligations to pay the fees, costs and expenses of such audits, inspections, valuations or field examinations shall limit the rights of Agents pursuant to the first sentence of this Section 2.06(f) and Section 7.01(f), in each case, if conducted at their own expense. In addition, (x) at any time after the first anniversary of this Agreement, Administrative Agent, acting in its Permitted Discretion, may elect to reduce the number of audits, inspections, valuations and/or field examinations per twelve (12) month period with respect to which Borrowers shall be liable for the fees, costs and expenses thereof (absent the existence of any Event of Default) from three (3) to two (2) if, to the extent and only continuing for so long as such reduction is consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies, and (y) absent the existence of any Event of Default, Agent, acting in its Permitted Discretion, shall use commercially reasonable efforts to endeavor to schedule its periodic audits, inspections, valuations and/or field examinations in a manner to minimize any adverse impact on the operations of Loan Parties to the extent consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies.

Section 2.07 LIBOR Option .

(a) In lieu of having interest charged at the rate based upon the Reference Rate, the Borrowers shall have the option (the “ LIBOR Option ”) to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate. Each Interest Period of a LIBOR Rate Loan made to Borrowers shall commence on the date such LIBOR Rate Loan is made and shall end on such date as the Borrower may elect as set forth in subsection 2.02(a) above; provided that no Interest Period shall end after the last day of the Final Maturity Date.

(b) The Administrative Borrower shall elect the initial Interest Period applicable to a LIBOR Rate Loan made to the Borrowers by its Notice of Borrowing given to the Administrative Agent pursuant to Section 2.02(a) or by its notice of conversion given to the Administrative Agent pursuant to Section 2.07(c), as the case may be. The Administrative Borrower shall elect the duration of each succeeding Interest Period by giving irrevocable written notice to the Administrative Agent of such duration not later than 11:00 a.m. (New York time) on the day which is not less than three (3) Business Days prior to the last day of the then current Interest Period applicable to such LIBOR Rate Loan. If the Administrative Agent does not receive timely notice of the Interest Period elected by the Administrative Borrower, the Administrative Borrower shall be deemed to have elected to convert such LIBOR Rate Loan to a Reference Rate Loan, subject to Section 2.07(c) herein below.

 

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(c) The Administrative Borrower may, on the last Business Day of the then current Interest Period applicable to any outstanding LIBOR Rate Loan made to the Borrowers, or on any Business Day with respect to Revolving Loans or any portion of the Term Loan that are Reference Rate Loans, convert any such loan into a loan of another type (i.e., a Reference Rate Loan or a LIBOR Rate Loan) in the same aggregate principal amount, provided that any conversion of a LIBOR Rate Loan made to the Borrowers not made on the last Business Day of the then current Interest Period applicable to such LIBOR Rate Loan shall be subject to Section 2.08. If a Borrower desires to convert a Loan, the Administrative Borrower shall give the Administrative Agent a LIBOR Notice by no later than 11:00 a.m. (New York City time) (i) on the day which is three (3) Business Days’ prior to the date on which such conversion is to occur with respect to a conversion from a Reference Rate Loan to a LIBOR Rate Loan, or (ii) on the day which is one (1) Business Day prior to the date on which such conversion is to occur with respect to a conversion from a LIBOR Rate Loan to a Reference Rate Loan, specifying, in each case, the date of such conversion, the Loans to be converted and the duration of the first Interest Period therefore.

(d) Subject to Section 2.05(b), the Borrowers may prepay the LIBOR Rate Loans in whole at any time or in part from time to time, together with accrued interest on the principal being prepaid to the date of such repayment in the case of any LIBOR Rate Loan made to the Borrowers, and the Administrative Borrower shall specify the date of prepayment of Loans which are LIBOR Rate Loans, the Loan to which such prepayment is to be applied and the amount of such prepayment.

(e) [Intentionally omitted.]

(f) Notwithstanding any other provision hereof, if any Requirement of Law, or Change in Law, shall make it unlawful for any Lender (for purposes of this subsection (f), the term “ Lender ” shall include any Lender and the office or branch where any Lender or any corporation or bank controlling such Lender makes or maintains any LIBOR Rate Loans) to make or maintain its LIBOR Rate Loans, the obligation of such Lender to make LIBOR Rate Loans hereunder shall forthwith be cancelled and the Borrowers shall, if any affected LIBOR Rate Loans are then outstanding, promptly upon request from the Administrative Agent, either pay all such affected LIBOR Rate Loans or convert such affected LIBOR Rate Loans into loans of another type. If any such payment or conversion of any LIBOR Rate Loan denominated in US Dollars made to the Borrowers is made on a day that is not the last day of the Interest Period applicable to such LIBOR Loan, the Borrowers shall pay the Administrative Agent, upon the Administrative Agent’s request, such amount or amounts as may be necessary to compensate Lenders for any Funding Losses sustained or incurred by Lenders in respect of such LIBOR Rate Loan as a result of such payment or conversion, including (but not limited to) any interest or other amounts payable by Lenders to lenders of funds obtained by Lenders in order to make or maintain such LIBOR Rate Loan. A certificate as to any additional amounts that describes in reasonable detail the calculations thereof payable pursuant to the foregoing sentence submitted by Lenders to the Administrative Borrower shall be conclusive absent manifest error.

(g) In the event that any Agent or any Lender shall have determined that:

 

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(i) reasonable means do not exist for ascertaining the LIBOR Rate applicable pursuant to Section 2.02(a) hereof for any Interest Period; or

(ii) dollar deposits in the relevant amount and for the relevant maturity are not available in the London interbank market, with respect to an outstanding LIBOR Rate Loan, a proposed LIBOR Rate Loan, or a proposed conversion of a Reference Rate Loan into a LIBOR Rate Loan; or

(iii) at any time that a Default or an Event of Default has occurred and is continuing,

then upon notice of same being given to the Administrative Borrower, the Administrative Agent shall give such Administrative Borrower prompt written, telephonic or facsimile notice of such determination. If such notice is given, (i) any such requested LIBOR Rate Loan shall be made as a Reference Rate Loan, unless such Administrative Borrower shall notify the Administrative Agent no later than 1:00 p.m. (New York City time) two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of LIBOR Rate Loan, (ii) any Reference Rate Loan or LIBOR Rate Loan which was to have been converted to an affected type of LIBOR Rate Loan shall be continued as or converted into a Reference Rate Loan, or, if such Administrative Borrower shall notify the Administrative Agent, no later than 11:00 a.m. (New York City time) two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of LIBOR Rate Loan, and (iii) any outstanding affected LIBOR Rate Loans shall be converted into a Reference Rate Loan at the end of the applicable Interest Period. Until such notice has been withdrawn, the Lenders shall have no obligation to make an affected type of LIBOR Rate Loan or maintain outstanding affected LIBOR Rate Loans and the Borrowers shall not have the right to convert a Reference Rate Loan or an unaffected type of LIBOR Rate Loan into an affected type of LIBOR Rate Loan.

(h) Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required actually to acquire LIBOR deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. Except for Section 2.07(g)(ii), the provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation as to which interest is accruing at the LIBOR Rate by acquiring LIBOR deposits for each Interest Period in the amount of the LIBOR Rate Loans.

Section 2.08 Funding Losses . In connection with each LIBOR Rate Loan, the Borrowers shall indemnify, defend, and hold the Agents and the applicable Lenders harmless against any loss, cost, or expense incurred by any Agent or any such Lender as a result of (a) the payment of any principal of any such LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of a Default or an Event of Default), (b) the conversion of any such LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow, convert, continue or prepay any such LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “ Funding Losses ”). Funding Losses shall, with respect to any Agent or any Lender, be deemed

 

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to equal the amount reasonably determined by such Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan excluding any loss of margin above the LIBOR Rate had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of an Agent or a Lender delivered to the Administrative Borrower setting forth a calculation in reasonable detail any amount or amounts that such Agent or such Lender is entitled to receive pursuant to this 2.08 shall be conclusive absent manifest error.

Section 2.09 Taxes . (a) Any and all payments by any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (“ Taxes ”), except as required by applicable law. If any applicable law requires the deduction or withholding of any Taxes from any such payment, then the applicable Loan Party or the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Taxes are Indemnified Taxes, then the sum payable by the Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deduction or withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. For this purpose, “Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any Obligation of any Loan Party, other than Excluded Taxes. For this purpose, “Excluded Taxes” means Taxes described in Section 2.09(e) below, and:

(A) taxes imposed on net income (or taxes imposed in lieu thereof) or branch profits taxes imposed on or with respect to any Agent, any Lender or the L/C Issuer (or any transferee or assignee thereof, including a participation holder (any such entity, a “ Transferee” )) or, in the case of a pass-through entity, any of its beneficial owners by the United States or the jurisdiction in which such Person is organized or has its principal lending office, or with which such Person has any other present or former connection (other than a connection arising solely from entering into, receiving any payment under or enforcing its rights under this Agreement or any other Loan Document),

(b) In addition, each Loan Party agrees to pay to the relevant Governmental Authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (“ Other Taxes ”). Each Loan Party shall deliver to each Agent, each Lender and the L/C Issuer (or Transferee) official receipts in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such Indemnified Taxes or Other Taxes.

 

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(c) The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent, each Lender and the L/C Issuer harmless from and against Indemnified Taxes and Other Taxes (including, Indemnified Taxes and Other Taxes imposed on any amounts payable under this Section 2.09) paid by such Person, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes.

(d) (i) Each Lender (or Transferee) with respect to the Obligations that is organized under the laws of a jurisdiction outside the United States (a “ Non-U.S. Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a properly completed and duly executed copy of either U.S. Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including the appropriate attachments thereto) or any subsequent versions thereof or successors thereto, in each case claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax and payments of interest hereunder along with any other appropriate documentation establishing such exemption or reduction. In addition, in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the IRC such Non-U.S. Lender hereby represents to the Agents and the Borrower that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the IRC is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the IRC) of either Parent, the Borrowers or the Guarantors and is not a controlled foreign corporation related to either Parent, the Borrowers or the Guarantors (within the meaning of Section 864(d)(4) of the IRC), and such Non-U.S. Lender agrees that it shall promptly notify the Administrative Agent (or, in the case of a participant, the Lender granting the participation only) in the event any such representation is no longer accurate. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a different lending office (a “ New Lending Office ”). In addition, such Non-U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable. If the lapse of time or a change in circumstances renders a previous certification obsolete or inaccurate in any material respect, the Non-U.S. Lender shall deliver to the Administrative Agent (who shall promptly deliver a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) new, properly completed and duly executed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation as may be required to establish such Non-U.S. Lender’s entitlement to a continued exemption from or reduction in United States withholding tax if such Non-U.S. Lender or beneficial owner continues to be so entitled.

(ii) Each Lender (or Transferee) and Agent that is a “United States person” (within the meaning of Section 7701(a)(30) of the IRC) (each a “ Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a complete and duly executed copy of Internal Revenue Service Form W-9 or successor form certifying that such Lender (or Transferee) is not subject to United States backup withholding tax

 

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on the date it becomes a party to this Agreement. Such forms shall be delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder). In addition, such U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable.

(iii) Notwithstanding any other provision of this Section 2.09, a Lender shall not be required to deliver any form pursuant to this Section 2.09(d) that such Lender is not legally able to deliver. Upon written request by the Administrative Borrower, the Administrative Agent shall provide to the Administrative Borrower any U.S. Internal Revenue Service Form received by the Administrative Agent pursuant to clauses (d)(i) and (d)(ii) above.

(e) The Loan Parties shall not be required to indemnify any Lender, or pay any additional amounts to any Lender, in respect of United States Federal withholding or backup withholding tax pursuant to this Section 2.09 to the extent that (i) the obligation to withhold amounts with respect to United States Federal withholding or backup withholding tax existed on the date such Lender became a party to this Agreement (or, in the case of a Transferee that is a participation holder, on the date such participation holder became a Transferee hereunder) or, with respect to payments to a New Lending Office, the date such Lender designated such New Lending Office with respect to a Loan; provided , however , that this clause (i) shall not apply to the extent the indemnity payment or additional amounts any Transferee, or Lender (or Transferee) through a New Lending Office, would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the Person making the assignment, participation or transfer to such Transferee, or Lender (or Transferee) making the designation of such New Lending Office, would have been entitled to receive in the absence of such assignment, participation, transfer or designation, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender or the Administrative Agent to comply with the provisions of clause (d) above, or (iii) the withholding is imposed pursuant to sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement (and any amended or successor version that is substantively comparable and not materially more on onerous to comply with and any current or future regulations or official interpretation thereof (“ FATCA ”).

(f) Any Agent, any Lender or the L/C Issuer (or Transferee) claiming any indemnity payment or additional payment amounts payable pursuant to this Section 2.09 shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Administrative Borrower or to change the jurisdiction of its applicable lending office if the making of such a filing or change would avoid the need for or reduce the amount of any such indemnity payment or additional amount that may thereafter accrue, would not require such Agent, such Lender or the L/C Issuer (or Transferee) to disclose any information such Agent, such Lender or the L/C Issuer (or Transferee) deems confidential and would not, in the sole determination of such Agent, such Lender or the L/C Issuer (or Transferee), be otherwise disadvantageous to such Agent, such Lender or the L/C Issuer (or Transferee).

 

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(g) If any Agent, any Lender or the L/C Issuer (or Transferee) determines in its good faith that it has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 2.09, it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section 2.09 with respect to the Indemnified Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of such Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Agent or such Lender (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Loan Party or any other Person.

(h) FATCA . If a payment made to a Lender under any Loan Document would be subject to United States federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent as may be necessary for the Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (h), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(i) The obligations of the parties under this Section  2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.10 Increased Costs and Reduced Return . (a) If any Lender, any Agent or the L/C Issuer shall have determined that any Change in Law shall (i) subject such Agent, such Lender or the L/C Issuer, or any Person controlling such Agent, such Lender or the L/C Issuer to any tax, duty or other charge with respect to this Agreement or any Loan made by such Agent or such Lender or any Letter of Credit issued by the L/C Issuer, or change the basis of taxation of payments to such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer of any amounts payable hereunder (except for Indemnified Taxes and Excluded Taxes), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan, any Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer or (iii) impose on such Agent, such Lender or the L/C Issuer or any Person controlling such Agent,

 

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such Lender or the L/C Issuer any other condition regarding this Agreement or any Loan or Letter of Credit, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Agent, such Lender or the L/C Issuer of making any Loan, issuing, guaranteeing or participating in any Letter of Credit, or agreeing to make any Loan or issue, guaranty or participate in any Letter of Credit, or to reduce any amount received or receivable by such Agent, such Lender or the L/C Issuer hereunder, then, upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such increased costs or reductions in amount; provided , however , that notwithstanding anything to the contrary in this Section 2.10(a), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(a) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(b) If any Agent, any Lender or the L/C Issuer shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer, and such Agent, such Lender or the L/C Issuer determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, Letters of Credit issued or any guaranty or participation with respect thereto, such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Agent’s, such Lender’s or the L/C Issuer’s such other controlling Person’s capital to a level below that which such Agent, such Lender or the L/C Issuer or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, Letters of Credit issued, or any guaranty or participation with respect thereto or any agreement to make Loans, to issue Letters of Credit or such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration, such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s policies with respect to capital adequacy), then, upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer from time to time such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such cost of maintaining such increased capital or such reduction in the rate of return on such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s capital; provided , however , that notwithstanding anything to the contrary in this Section 2.10(b), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(b) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(c) All amounts payable under this Section 2.10 shall bear interest from the date that is ten (10) days after the date of demand by any Agent, any Lender or the L/C Issuer until Payment in Full to such Agent, such Lender or the L/C Issuer at the Reference Rate. A certificate of such Agent, such Lender or the L/C Issuer claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Agent, such Lender or the L/C Issuer to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Agent’s, such Lender’s or the L/C Issuer’s reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error.

 

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(d) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided , that the Borrowers shall not be required to compensate such Agent, such Lender or the L/C Issuer pursuant to this Section 2.10 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Agent, Lender or L/C Issuer, as the case may be, notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Agent’s, Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 days period referred to above shall be extended to include the period of retroactive effect thereof).

(e) The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.11 Extended Term Loans and Extended Revolving Credit Commitments .

(a) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Term Loan be amended to extend the scheduled maturity date (a “ Term Loan Extension ”) with respect to all or a portion of any principal amount of the applicable Term Loan (any such Term Loan or portion thereof that has been so converted, “ Extended Term Loans ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Term Loan, the Administrative Borrower shall provide a notice to the Collateral Agent (who shall provide a copy of such notice to each Term Loan Lender and the Administrative Agent) (a “ Term Loan Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii) certifying that both before and after giving effect to such Term Loan Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Term Loan Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition, (iii) the Administrative Borrower shall have offered to all Term Loan Lenders the opportunity to participate in such Term Loan Extension on a pro rata basis with respect to the corresponding Term Loan and on the same terms and conditions to each such Term Loan Lender, and any applicable Lender may elect to agree or to decline, in its sole discretion, and (iv) setting forth the proposed terms of the Extended Term Loans to be established, which (x) shall be identical as offered to each Term Loan Lender, (including as to the proposed interest rates and fees payable) and offered pro rata to each Term Loan Lender, and (y) shall specify the date on which the Administrative Borrower proposes that the Term Loan Extension shall be effective and the proposed final maturity date of the Extended Term Loan, except that :

 

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(A) all or any of the scheduled amortization payments of principal of the Extended Term Loan may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans, to the extent provided in the applicable Extension Amendment;

(B) repayments of principal of the Extended Term Loan may be delayed to dates occurring after the Final Maturity Date;

(C) the effective yield with respect to the Extended Term Loan (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for the Term Loan, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Term Loan shall at any time (over the life of such Extended Term Loan) exceed by more than 0.50% the effective yield on the then outstanding Term Loan, the margin applicable to all existing Term Loans shall be increased to the extent necessary so that at all times thereafter the holders of the Term Loan do not receive less than the effective yield with respect to such Extended Term Loan less 0.50%;

(D) the Extension Amendment may provide for other covenants and terms that apply only after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Term Loan);

(E) Extended Term Loans may have mandatory prepayment terms that provide for the application of proceeds from mandatory prepayment events to be made first to prepay the applicable Term Loans before applying any such proceeds to prepay such Extended Term Loans; and

(F) Extended Term Loans may have optional prepayment terms (including call protection and terms which allow the applicable Term Loan to be optionally prepaid prior to the prepayment of such Extended Term Loan) as may be agreed by the applicable Administrative Borrower and the Lenders; provided that no Extended Term Loans may be optionally prepaid prior to the date on which the corresponding Term Loan is Paid in Full, unless such optional prepayment is accompanied by a pro rata optional prepayment of the corresponding Term Loan.

(b) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Term Loan at the time of establishment thereof be earlier than the Final Maturity Date, (ii) the weighted average life to maturity of any Extended Term Loan at the time of establishment thereof shall be no shorter than the remaining weighted average life to maturity of the corresponding Term Loan, and (iii) any Extended Term Loan may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Term Loan Extension Request.

 

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(c) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Revolving Credit Commitments be amended to extend the scheduled maturity date (a “ Revolving Credit Extension ”) with respect to all or a portion of any principal amount of such Revolving Credit Commitments (any such Revolving Credit Commitments which have been so amended, “ Extended Revolving Credit Commitments ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Revolving Credit Commitments, the Administrative Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each Revolving Loan Lender and the Collateral Agent) (each, a “ Revolver Extension Request ”; together with a Term Loan Extension Request, each an “ Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii) certifying that both before and after giving effect to such Revolving Credit Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Revolving Credit Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition and in no event shall such materiality qualifier be applicable with respect to the representations set forth in the final sentence of Section 6.01(g)(i), (iii) the Administrative Borrower shall have offered to all Revolving Loan Lenders the opportunity to participate in such Revolving Credit Extension on a pro rata basis with respect to the Revolving Credit Commitments and on the same terms and conditions to each such Revolving Loan Lender, and any Revolving Loan Lender may elect to agree or to decline, in its sole discretion, and (iv) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which (x) shall be identical as offered to each Revolving Loan Lender (including as to the proposed interest rates and fees payable) and offered pro rata to each Revolving Loan Lender and (y) shall specify the date on which the Administrative Borrower proposes that the Revolving Credit Extension shall be effective and the proposed final maturity date of the Extended Revolving Credit Commitment, except that:

(A) the maturity date of the Extended Revolving Credit Commitments may be delayed to a later date than the Final Maturity Date, to the extent provided in the applicable Extension Amendment;

(B) the effective yield with respect to extensions of credit under the Extended Revolving Credit Commitments (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for extensions of credit under the Revolving Credit Commitments, in each case, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Revolving Credit Commitments shall at any time (over the life of such Extended Revolving Credit Commitments) exceed by more than 0.50% the effective yield on the then outstanding Revolving Credit Commitments, the margin applicable thereto shall be increased to the extent necessary so that at all times thereafter the Revolving Loan Lenders do not receive less than the effective yield with respect to such Extended Revolving Credit Commitments less 0.50%;

 

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(C) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Revolving Credit Commitments); and

(D) all borrowings under the Revolving Credit Commitments and the Extended Revolving Credit Commitments and repayments thereunder shall be made on a pro rata basis (except for (x) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings) and (y) repayments required upon the maturity date of the non-extending Revolving Credit Commitments).

(d) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Revolving Credit Commitment at the time of establishment thereof be earlier than the Final Maturity Date, (ii) the amount of the Extended Revolving Credit Commitments shall not include any scheduled decrease prior to the Final Maturity Date, and (iii) any Extended Revolving Credit Commitment may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Revolver Extension Request.

(e) The Administrative Borrower shall provide the applicable Extension Request at least ten Business Days prior to the date on which the Term Loan Lenders or Revolving Loan Lenders, as applicable, are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.11. No Lender shall have any obligation whatsoever to agree to have any of its Term Loans amended into Extended Term Loans or any of its Revolving Credit Commitments amended into Extended Revolving Credit Commitments, as applicable, pursuant to any Extension Request, and no Lender shall have any obligation whatsoever to respond to any such Extension Request. Any Lender that does not respond to the Extension Request on or prior to the date specified therein shall be deemed to have rejected such Extension Request. Any existing Term Loan Lender wishing to have all or a portion of its Term Loan subject to such Extension Request amended into Extended Term Loans and any Revolving Loan Lender wishing to have all or a portion of its Revolving Credit Commitment subject to such Extension Request amended into Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (each, an “ Extension Election ”) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Credit Commitments, as applicable, which it has elected to be amended into Extended Term Loans or Extended Revolving Credit Commitments, as applicable (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, in respect of which applicable Term Loan Lenders or Revolving Loan Lenders, as the case may be, shall have accepted the relevant Extension Request exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested to be extended pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, as applicable, subject to Extension Elections shall be amended to Extended Term Loans or Revolving Credit Commitments, as applicable, on a pro rata basis (subject to rounding by the Administrative Agent, which shall be conclusive) based on the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, included in each such Extension Election.

 

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(f) Extended Term Loans and Extended Revolving Credit Commitments shall be established pursuant to an Extension Amendment to this Agreement among the Loan Parties, the Administrative Agent, the Collateral Agent and each Lender providing Extended Term Loans or Lender providing an Extended Revolving Credit Commitment, which shall be consistent with the provisions set forth above (but which shall not require the consent of any other Lender other than those consents provided pursuant to this Agreement). Each Extension Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto. In connection with any Extension Amendment, the Loan Parties, the Administrative Agent, the Collateral Agent shall enter into such amendments to the other Loan Documents as may be reasonably requested by the Agents (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement) in order to ensure that the Extended Term Loans or Extended Revolving Credit Commitments are provided with the benefit of the Collateral provided in the other Loan Documents and shall deliver such other agreements, documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Agents.

(g) The provisions of this Section 2.11 shall override any provision of Section 12.02(a) (other than provisions therein that require certain unanimous votes) to the contrary. No conversion of Loans pursuant to any Extension Request in accordance with this Section 2.11 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. For the avoidance of doubt, and notwithstanding anything to the contrary contained in the foregoing, no provision of any Extension Amendment may amend, modify or waive any provision of Sections 2.05(c)(i), 2.05(c)(iii), 2.05(d) or 4.03 without the consent of all Lenders.

Section 2.12 Mitigation Obligations; Replacement of Lenders .

(a) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section 2.10, then such Lender shall (at the request of the Administrative Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to such Section in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.

(b) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section 2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above in a manner that eliminates the accrual of such additional amounts, or if any Lender is a Defaulting Lender, then the Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

 

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(i) the Borrowers shall have paid to the Agents any assignment fees specified in Section 12.07;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.07) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from payments required to be made pursuant to Section 2.07 or a claim for compensation under Section 2.10, such assignment will result in a reduction in such compensation or payments thereafter; and

(iv) such assignment does not conflict with applicable law.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply.

ARTICLE III.

LETTERS OF CREDIT

Section 3.01 Letters of Credit . Subject to the terms and conditions hereof (including Section 2.01(b) hereof), the L/C Issuer shall issue or cause the issuance of standby and/or trade letters of credit (collectively, “ Letters of Credit ”) for the account of the Borrowers or any of their Subsidiaries upon the request of Administrative Borrower (each such Letter of Credit, a “ Letter of Credit ”), which such Letters of Credit shall be denominated in Dollars. The Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed in the aggregate at any time the lower of (i) (A) the Borrowing Base minus (B) the aggregate principal amount of all Revolving Loans then outstanding, or (ii) the Letter of Credit Sublimit; provided that, notwithstanding anything to the contrary contained in the foregoing or in any other provision hereof, no Letter of Credit shall be issued if after giving effect thereto, any of the credit limits set forth in Section 2.01(b) would be violated. All disbursements or payments related to Letters of Credit shall be deemed to be Revolving Loans and shall bear interest at the rate applicable to Revolving Loans that are Reference Rate Loans in accordance with Section  2.04 . Letters of Credit that have not been drawn upon shall not bear interest.

Section 3.02 Issuance of Letters of Credit .

(a) Subject to the terms hereof, the Administrative Borrower may request the L/C Issuer to issue or cause the issuance of a Letter of Credit by delivering to the Administrative Agent, at the Payment Office, prior to 10:00 a.m. (New York time), at least five (5) Business Days’ prior to the proposed date of issuance, the L/C Issuer’s form of letter of credit application (the “ Letter of Credit Application ”) completed to the reasonable satisfaction of the

 

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L/C Issuer, and such other certificates, documents and other papers and information as the L/C Issuer may reasonably request. The Administrative Borrower, also has the right to give instructions and make agreements with the L/C Issuer with respect to any application, any applicable letter of credit and related security agreement, any applicable letter of credit reimbursement agreement and/or any other applicable agreement, and the disposition of applicable documents, and to agree with the L/C Issuer upon any amendment, extension or renewal of any Letter of Credit.

(b) Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts, other written demands for payment, or acceptances of drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) except as provided in Section 3.02(d) below, have an expiry date not later than twelve (12) months after such Letter of Credit’s date of issuance (subject to automatic renewals) and in no event later than the date that is 15 days prior to the Final Maturity Date. Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 600, and any amendments or revision thereof adhered to by the Issuer (“ UCP 600 ”) or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590) (“ ISP98 Rules ”), as determined by the L/C Issuer, and each trade Letter of Credit shall be subject to UCP 600.

(c) The Administrative Agent shall use its reasonable efforts to notify the Lenders of the request by the Administrative Borrower for a Letter of Credit hereunder.

(d) Notwithstanding anything to the contrary set forth in Section 3.02(b) or any other provision of this Agreement, Administrative Borrower may request and L/C Issuer may issue Letters of Credit (and/or renewals or extensions of existing Letters of Credit) under this Agreement with an expiry date that extends months beyond) the Final Maturity Date then in effect when such Letter of Credit (or the extension or renewal thereof) is requested (any such Letter of Credit so issued, renewed or extended, a “ Post-Term Letter of Credit ”), subject to all other existing terms and conditions of and provisions in this Agreement regarding Letters of Credit, including any terms, conditions and provisions regarding the requesting and issuance thereof, but provided that, under no circumstances may any such Post-Term Letter of Credit as so issued, renewed or extended have an expiry date later than the twelve-month anniversary of the Final Maturity Date as in effect when such Post-Term Letter of Credit is so issued, renewed or extended. Nothing contained in this Section 3.02(d) shall be construed under any circumstances as an agreement by Lenders to extend the Final Maturity Date or require or obligate in any way Agent, Lenders and/or Issuer to make any Loans or to issue any new Letters of Credit (or extend or renew any existing Letters of Credit) on or after the Final Maturity Date.

(e) All of the obligations, liabilities and indebtedness of any kind or nature of Borrowers with respect to any and all such Post-Term Letters of Credit (including all Reimbursement Obligations and obligations to pay Letter of Credit Fees and obligations to pay interest in respect of any disbursement made by L/C Issuer in connection with a drawing under a Post-Term Letter of Credit that is not immediately reimbursed by Borrowers (including any such interest accruing thereon after the Final Maturity Date, or after the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-

 

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petition interest and/or Letter of Credit Fees is allowed in such proceeding)) (any such obligations, liabilities and indebtedness, the “ Post-Term Letter of Credit Obligations ”) shall remain Obligations secured by the Collateral pursuant to the Liens created under the Loan Documents both prior to and after the Final Maturity Date, and Agents and Lenders shall have no obligations to release any Liens on the Collateral notwithstanding the overall termination of this Agreement and of the commitments of the Lenders hereunder, until such time as the last such Post-Term Letter of Credit shall have expired or terminated or shall been fully drawn and all Post-Term Letter of Credit Obligations (other than contingent indemnities and expense reimbursement obligations to the extent no claim therefore has been made, or is reasonably expected to be made) have been paid in full in cash, provided that , notwithstanding the foregoing, on the Final Maturity Date, Borrowers may Cash Collateralize each such Post-Term Letter of Credit, and in such event, if all other Obligations have been Paid in Full, Collateral Agent may release the Liens and security interests on all other Collateral in accordance with the Loan Documents. Administrative Agent will deposit such Cash Collateral in a non-interest bearing deposit account maintained at Administrative Agent. Borrowers agree that upon the coming due of any such Post-Term Letter of Credit Obligations, Agent may use such Post-Term Cash Collateral to pay and satisfy such Post-Term Letter of Credit Obligations.

(f) Notwithstanding anything to the contrary contained in this Agreement and/or the overall termination of this Agreement on the Final Maturity Date (subject to the survival of the provisions thereof that survive the termination of this Agreement by the terms thereof), all of the applicable provisions of Article III and Section 2.06(c) of this Agreement, any Letter of Credit application for any Post-Term Letter of Credit and any other documents executed by and/or between Borrowers and/or L/C Issuer with respect to any Post-Term Letter of Credit (other than any provisions providing for any obligations of any Lenders or any provisions giving Borrowers the right or ability to request that additional Letters of Credit be issued or that existing Letters of Credit be renewed or extended) shall survive the termination of this Agreement on the last day of the Term for the benefit of Agent and Lenders (but not for the benefit of Borrowers), and Borrowers shall remain bound thereby, including without limitation (i) the obligations under Section 2.6(c) of this Agreement for Borrowers to pay Letter of Credit Fees to L/C Issuer with respect to any Post-Term Letter of Credit for so long as each Post-Term Letter of Credit shall remain outstanding and (ii) the obligations under this Article III for Borrowers to pay interest on any disbursements or payments made by L/C Issuer relating to any Post-Term Letter of Credit until reimbursed.

Section 3.03 Requirements For Issuance of Letters of Credit . The Administrative Borrower shall authorize and direct the L/C Issuer to name one or more Borrowers as the “Applicant” or “Account Party” of each Letter of Credit. If the Administrative Agent is not the L/C Issuer of any Letter of Credit, the Administrative Borrower shall authorize and direct the L/C Issuer to deliver to the Administrative Agent all instruments, documents, and other writings and property received by the L/C Issuer pursuant to the Letter of Credit and to accept and rely upon the Administrative Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the application therefor.

 

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Section 3.04 Disbursements, Reimbursement .

(a) Immediately upon the issuance of each Letter of Credit, each Revolving Loan Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s applicable Pro Rata Share (determined in accordance with paragraph (a) of the definition of “Pro Rata Share”) of the Maximum Face Amount of such Letter of Credit and the amount of such drawing, respectively.

(b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the L/C Issuer will promptly notify the Administrative Borrower. Provided that it shall have received such notice by 12:00 noon (New York City time) with respect to any Letter of Credit, the Borrowers shall reimburse (such obligation to reimburse the L/C Issuer together with any interest thereon pursuant to Section  2.04 shall be referred to as a “ Reimbursement Obligation ”) the L/C Issuer prior to 1:00 p.m. (New York City time) on such date that an amount is paid by the L/C Issuer under any Letter of Credit (each such date, a “ Drawing Date ”) in an amount and in the currency equal to the amount and currency so paid by the L/C Issuer. In the event the Borrowers fail to reimburse the L/C Issuer for the full amount of any drawing under any Letter of Credit by 1:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, the Administrative Agent will promptly notify each Revolving Loan Lender thereof, and the Borrowers shall be deemed to have requested that a Revolving Loan that is a Reference Rate Loan be made by the Revolving Loan Lenders pursuant to Section 2.01(a)(i)(B) to be disbursed on the Drawing Date under such Letter of Credit. Any notice given by the Administrative Agent pursuant to this Section 3.04(b) may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(c) Each Revolving Loan Lender shall upon any notice pursuant to Section 3.04(b) make available to the L/C Issuer an amount in immediately available funds equal to its applicable Pro Rata Share (determined in accordance with paragraph (a) of the definition of “Pro Rata Share”) of the amount of the drawing, whereupon the participating Lenders shall (subject to Section 3.04(d)) each be deemed to have made a Revolving Loan that is a Reference Rate Loan to the Borrowers in that amount. If any Revolving Loan Lender so notified fails to make available to the L/C Issuer the amount of such Lender’s applicable Pro Rata Share of such amount by no later than 2:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, then (unless L/C Issuer and such Lender shall agree otherwise, each in their sole and absolute discretion) interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three days following the Drawing Date and (ii) at a rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans on and after the fourth day following the Drawing Date. The Administrative Agent will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent to give any such notice on the Drawing Date or in sufficient time to enable any Revolving Loan Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 3.04(c), provided that such Lender shall not be obligated to pay interest as provided in Section 3.04(c) (i) and (ii) until and commencing from the date of receipt of notice from the Administrative Agent of a drawing. Each Revolving Loan

 

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Lender’s payment to the L/C Issuer pursuant to this Section 3.04(c) shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “ Participation Revolving Loan ” from such Lender in satisfaction of its Participation Commitment under this Section 3.04.

(d) With respect to any unreimbursed drawing that is not converted into a Revolving Loan to the Borrowers in whole or in part as contemplated by Section 3.04(b), because of the failure of Borrowers to satisfy the conditions set forth in Section 5.02 (other than any notice requirements) or for any other reason, the Borrowers shall be deemed to have incurred from the L/C Issuer a borrowing (each a “ Letter of Credit Borrowing ”) in the currency in which such Letter of Credit is denominated in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans.

(e) Each Lender’s Participation Commitment shall continue until the last to occur of any of the following events: (x) the L/C Issuer ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter of Credit issued or created hereunder remains outstanding and uncanceled and (z) all Persons (other than the Borrowers) have been fully reimbursed for all payments made under or relating to Letters of Credit.

Section 3.05 Repayment of Participation Revolving Loans .

(a) Upon (and only upon) receipt by the L/C Issuer for its account of immediately available funds from the Borrowers (i) in reimbursement of any payment made by the L/C Issuer under any Letter of Credit with respect to which any Lender has made a Participation Revolving Loan to the L/C Issuer or (ii) in payment of interest on such a payment made by the L/C Issuer under such a Letter of Credit, the L/C Issuer will pay to each Revolving Loan Lender in the same funds and currencies as those received by the L/C Issuer, the amount of such Lender’s applicable Pro Rata Share of such funds, except the L/C Issuer shall retain the amount of the applicable Pro Rata Share of such funds of any Revolving Loan Lender that did not make a Participation Revolving Loan in respect of such payment by the L/C Issuer.

(b) If the L/C Issuer is required at any time to return to the Borrowers or to a trustee, receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion of the payments made by the Borrowers to the L/C Issuer pursuant to Section 3.05(a) in reimbursement of a payment made under any Letter of Credit or interest or fee thereon, each Revolving Loan Lender shall, on demand of the L/C Issuer, forthwith return to the L/C Issuer the amount of its applicable Pro Rata Share of any amounts so returned by the L/C Issuer plus interest at the Federal Funds Effective Rate.

Section 3.06 Documentation . Each Borrower agrees to be bound by the terms of the Letter of Credit Application and by the L/C Issuer’s interpretations of any Letter of Credit issued for the Loan Account of Borrowers and by the L/C Issuer’s written regulations and customary practices relating to letters of credit, though the L/C Issuer’s interpretations may be different from the interpretations of Borrowers. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct (as determined by a court of

 

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competent jurisdiction in a final nonappealable judgment), neither the L/C Issuer nor the Administrative Agent shall be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any instructions of any Borrower or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.

Section 3.07 Determination to Honor Drawing Request . In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the L/C Issuer shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

Section 3.08 Nature of Participation and Reimbursement Obligations . Each applicable Revolving Loan Lender’s obligation in accordance with this Agreement to make the Revolving Loans or Participation Revolving Loans as a result of a drawing under a Letter of Credit, and the obligations of the Borrowers to reimburse the L/C Issuer upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article III under all circumstances, including the following circumstances:

(a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Administrative Agent, the Borrowers or any other Person for any reason whatsoever;

(b) the failure of the Borrowers or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in this Agreement for the making of a Revolving Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Revolving Loans under Section  3.04 ;

(c) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Documents;

(d) any claim of breach of warranty that might be made by any Borrower or any Lender against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Borrower or any Lender may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the L/C Issuer, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement, such Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrowers or any of their Subsidiaries and the beneficiary for which any Letter of Credit was procured);

(e) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provisions of services relating to a Letter of Credit;

 

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(f) except as provided in Section  3.07 , any payment by the L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

(g) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

(h) any failure by the Administrative Agent or the L/C Issuer to issue any Letter of Credit in the form requested by the applicable Borrowers, unless the Administrative Agent has received written notice from the Administrative Borrower of such failure within three (3) Business Days after the Administrative Agent shall have furnished the Administrative Borrower a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

(i) any Material Adverse Effect on any Borrower or any Guarantor;

(j) any breach of this Agreement or any Loan Document by any party thereto;

(k) the occurrence or continuance of an insolvency proceeding with respect to any Borrower or any Guarantor;

(l) the fact that a Default or Event of Default shall have occurred and be continuing;

(m) the fact that the Final Maturity Date shall have occurred or this Agreement or the Obligations hereunder shall have been terminated; and

(n) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

Nothing contained in this Section  3.08 shall be deemed to relieve the Administrative Agent or the L/C Issuer from any claim by any of the Borrowers for the gross negligence or willful misconduct of the Administrative Agent or the L/C Issuer, respectively, in respect of honoring or failing to honor any drawing under any Letter of Credit or otherwise in respect of any Letter of Credit, but any such claim may not be used as a defense to the reimbursement obligation for any such drawing.

Section 3.09 Indemnity . In addition to amounts payable as provided in Section  12.15 , the Borrowers, jointly and severally, hereby agree to protect, indemnify, pay and save harmless the Administrative Agent and the L/C Issuer from and against any and all claims, demands, liabilities, damages, taxes, (except for the imposition of, or any change in the rate of,

 

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any taxes imposed on the net income of any Agent, any Lender or the L/C Issuer by the jurisdiction in which such Person is organized or has its principal lending office), penalties, interest, judgments, losses, costs, charges and expenses (including reasonable and documented out-of-pocket fees, expenses and disbursements of outside counsel and allocated costs of internal counsel) which the Administrative Agent or any of the Administrative Agent’s Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence, bad faith or willful misconduct of the Administrative Agent or the L/C Issuer or any of their respective Affiliates (as determined by a court of competent jurisdiction in a final nonappealable judgment), or (B) the wrongful dishonor by the Administrative Agent, the L/C Issuer, or any of their respective Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “ Governmental Acts ”).

Section 3.10 Liability for Acts and Omissions . As between the Borrowers, the L/C Issuer and the Revolving Loan Lenders, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among Borrowers and any beneficiary of any Letter of Credit or any such transferee; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (h) any consequences arising from causes beyond the control of the L/C Issuer, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the L/C Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the L/C Issuer from liability for the L/C Issuer’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment) in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the L/C Issuer or the L/C Issuer’s Affiliates be liable to the Borrowers for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

 

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Without limiting the generality of the foregoing, the L/C Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the L/C Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the L/C Issuer or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “ Order ”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the L/C Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment), shall not put the L/C Issuer under any resulting liability to the Borrowers or any Revolving Loan Lender.

ARTICLE IV.

APPLICATION OF PAYMENTS; DEFAULTING LENDERS;

JOINT AND SEVERAL LIABILITY OF BORROWERS

Section 4.01 Payments; Computations and Statements . (a) The Borrowers will make each payment under this Agreement not later than 2:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America and in immediately available funds, to the applicable Administrative Agent’s Account. All payments received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day will be credited to the Loan Account on the next succeeding Business Day, provided that for the purpose of computing interest charges for the Obligations during any time when springing cash dominion is in effect pursuant to Section 8.01(d), all items of payment (including customer remittances received into any Cash Management Accounts and applied to the Obligations under any cash dominion arrangements described in Section 8.01) shall be deemed applied by the Administrative Agent one (1) Business Day after (A) the Business Day following the Administrative Agent’s receipt of such payments via wire transfer or electronic depository check or (B) in the case of payments received by the Administrative Agent in any other form, the Business Day such payment constitutes good funds. This approach is acknowledged by the

 

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parties to be an integral aspect of the price of the Lenders’ financing of the Borrowers and shall apply irrespective of the characterization of whether receipts are owned by the Borrowers or the Lenders. All payments shall be made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. Except as provided in Section 2.02, after receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the applicable Lenders in accordance with their applicable Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement, provided that the Administrative Agent will cause to be distributed all interest and fees received from or for the account of the Borrowers not less than once each month and in any event promptly after receipt thereof. The Lenders and the Borrowers hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account of the Borrowers with any amount due and payable by the Borrowers under any Loan Document, provided that, in the absence of a continuing Event of Default, any such charge in respect of out-of-pocket fees, costs and expenses of the Agents and Lenders payable by the Borrowers shall occur no sooner than 15 days after the Administrative Borrower’s receipt of a reasonably detailed invoice therefor. Each of the Lenders and the Borrowers agrees that the Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing or whether any of the conditions precedent in Section 5.02 have been satisfied. Any amount charged to the Loan Account of the Borrowers shall be deemed a Revolving Loan hereunder made by the Revolving Loan Lenders to the Borrowers, funded by the Administrative Agent on behalf of the Revolving Loan Lenders and subject to Section 2.02 of this Agreement. The Lenders and the Borrowers confirm that any charges which the Administrative Agent may so make to the Loan Account of the Borrowers as herein provided will be made as an accommodation to the Borrowers and solely at the Administrative Agent’s discretion, provided that the Administrative Agent shall from time to time upon the request of the Collateral Agent, charge the Loan Account of the Borrowers with any amount not paid when due and payable under any Loan Document. Whenever any payment to be made or any report required to be delivered under any such Loan Document shall become due on a day other than a Business Day, such payment shall be made, or such report shall be delivered on the next succeeding Business Day and if applicable, such extension of time shall in such case be included in the computation of interest or fees, as the case may be. Except as otherwise expressly provided for herein, all computations of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such fees are payable. Each determination by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

(b) The Administrative Agent shall provide each of the Administrative Borrowers, promptly after the end of each calendar month, a summary statement (in the form from time to time used by the Administrative Agent) of the opening and closing daily balances in the Loan Account of the Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied, the amount of interest accrued on the Loans to the Borrowers during such month, any Letters of Credit issued by the L/C Issuer for the account of the Borrowers during such month, specifying

 

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the face amount thereof, the amount of charges to the Loan Account and/or Loans made to the Borrowers during such month to reimburse the Revolving Loan Lenders for drawings made under Letters of Credit, and the amount and nature of any charges to the Loan Account made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement shall be presumed to be correct and, thirty (30) days after the same is sent, shall be final and conclusive absent manifest error.

Section 4.02 Sharing of Payments . Except as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall forthwith (a) turn the same over to the Administrative Agent, in kind, and with such endorsements as may be required to negotiate the same to the Administrative Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (b) purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them in accordance with the applicable provisions of this Agreement; provided , however , that (i) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (A) the amount of such Lender’s required repayment to (B) the total amount so recovered from the purchasing Lender of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered) and (ii) the provisions of this Section shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or participant, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 4.02 may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.

Section 4.03 Apportionment of Payments . Subject to Section 2.02 hereof and to any written agreement among the Agents and/or the Lenders (including the Agreement Among Lenders):

(a) All payments of principal and interest in respect of outstanding Loans, all payments in respect of the Letter of Credit Obligations, all payments of fees (other than the fees set forth in Section 2.06 hereof to the extent set forth in a written agreement among the Agents and the Lenders, fees with respect to Letters of Credit provided for in Sections 2.06(c)(i)(B) and 2.06(c)(ii)) and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans or Letter of Credit Obligations, as designated by the Person making payment when the payment is made.

 

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(b) After the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Collateral Agent or the Required Lenders shall, apply all proceeds of the Collateral as follows: (i)  first , ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents or the L/C Issuer until paid in full; (ii)  second , ratably to pay the Revolving Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Revolving Loan Lenders until paid in full; (iii)  third , ratably to pay interest then due and payable in respect of the Revolving Loans, Agent Advances and Reimbursement Obligations until paid in full; (iv)  fourth , ratably to pay principal of the Revolving Loans, Agent Advances and Letter of Credit Obligations (or, to the extent such Obligations are contingent, to provide Cash Collateral in respect of such Obligations) until paid in full; (v)  fifth , ratably to pay Bank Product Obligations in an amount not to exceed the amount of the Bank Product Reserve; (vi)  sixth , ratably to pay the Term Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Term Loan Lenders until paid in full; (vii)  seventh , ratably to pay interest then due and payable in respect of the Term Loan until paid in full; (viii)  eighth , ratably to pay principal of the Term Loan until paid in full; (ix)  ninth , ratably to pay the Obligations in respect of any Applicable Prepayment Premium then due and payable to the Lenders until paid in full; (x)  tenth , ratably to Bank Product Obligations to the extent not paid under clause (v) above; and (xi)  eleventh , to the ratable payment of all other Obligations then due and payable.

(c) In each instance, so long as no Event of Default has occurred and is continuing and the Administrative Agent has not elected to or has not been directed by the Collateral Agent to apply payments and other Proceeds of Collateral in accordance with Section 4.03(b), Section 4.03(b) shall not be deemed to apply to any payment by the Borrowers specified by the Administrative Borrower to the Administrative Agent to be for the payment of the principal of or interest on the Term Loans or other related Obligations then due and payable under any provision of this Agreement or the prepayment of all or part of the principal of the Term Loans in accordance with the terms and conditions of Section 2.05.

(d) For purposes of Section 4.03(b), “paid in full” means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees and interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest calculated at default rates, interest on interest and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding.

(e) In the event of a direct conflict between the priority provisions of this Section 4.03 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 4.03 shall control and govern.

 

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Section 4.04 Defaulting Lenders . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(a) The Administrative Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the Administrative Agent for such Defaulting Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender, the Administrative Agent shall transfer any such payments to each other non-Defaulting Lender ratably in accordance with their Pro Rata Shares (without giving effect to the Pro Rata Shares of such Defaulting Lender) (but only to the extent that such Defaulting Lender’s Loans were funded by the other Lenders) or, if so directed by the Administrative Borrower and if no Default or Event of Default has occurred and is continuing (and to the extent such Defaulting Lender’s Loans were not funded by the other Lenders), retain the same to be re-advanced to the Borrowers as if such Defaulting Lender had made such Loans to the Borrowers. Subject to the foregoing, the Administrative Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by the Administrative Agent for the account of such Defaulting Lender. No Defaulting Lender shall be entitled to receive any Unused Line Fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fees that otherwise would have been required to have been paid to that Defaulting Lender).

(b) Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 12.07.

(c) The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Administrative Agent or to the Lenders other than such Defaulting Lender.

 

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(d) This Section shall remain effective with respect to such Lender until either (i) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the L/C Issuer, the Agents, and the Borrowers shall have waived such Defaulting Lender’s default in writing, and the Defaulting Lender makes its Pro Rata Share of the applicable defaulted Loans and pays to the Agents all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

Section 4.05 Joint and Several Liability of the Borrowers .

(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations, in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05) it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the Borrowers under the provisions of this Section 4.05 constitute the absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.

(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation.

 

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(c) The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have been Paid in Full.

(d) Each of the Borrowers hereby agrees that it will not enforce any rights that it may now or hereafter acquire against any other entity constituting a Borrower or a Guarantor that arise from the existence, payment, performance or enforcement of such entity’s obligations under this Agreement and the other Loan Documents, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent and the Lenders against any other entity constituting a Borrower or a Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any other entity constituting a Borrower or a Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the Payment in Full of the Obligations.

ARTICLE V.

CONDITIONS TO LOANS

Section 5.01 Conditions Precedent to Effectiveness . This Agreement shall become effective as of the Business Day (the ” Effective Date ”) when each of the following conditions precedent shall have been satisfied in a manner reasonably satisfactory to the Agents:

(a) Payment of Fees, Etc. The Borrowers shall have paid on or before the date of this Agreement all fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04.

(b) Representations and Warranties; No Event of Default . The following statements shall be true and correct: (i) notwithstanding the provisions of Section 5.02(a)(i) and (ii) below to the contrary, the only representations and warranties relating to the Borrowers and their Subsidiaries the accuracy of which shall be a condition to the availability of the Loans and the Letters of Credit on the Effective Date, shall be (A) the representations and warranties contained in Section 6.01(a), (b), (c), (d), (k), (t), (u) and (y), and (B) the

 

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representations and warranties made by Funko Holdings or with respect to the business of Parent in the Acquisition Agreement, but only to the extent that the Parent or any of its Affiliates have the right under the Acquisition Agreement to terminate their obligations under the Acquisition Agreement or not to consummate the transactions contemplated by the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement without regard to the Parent’s or the Buyer’s waiver of such breach; provided that the representations and warranties specified in clauses (A) and (B) above are true and correct on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct on and as of such earlier date), and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms.

(c) Legality . The making of the initial Loans or the issuance of any Letters of Credit shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C Issuer.

(d) Delivery of Documents . The Collateral Agent shall have received on or before the Effective Date the following, each in form and substance reasonably satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective Date:

(i) a Security Agreement, together with, to the extent applicable, the original stock certificates representing all of the Equity Interests, and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and other proper instruments of transfer;

(ii) a UCC Filing Authorization Letter, together with (A) appropriate financing statements on Form UCC-1, duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Agreement and (B) evidence reasonably satisfactory to the Collateral Agent of the filing of such UCC-1 financing statements as reasonably requested by the Collateral Agent and each Mortgage;

(iii) certified copies of request for copies of information on Form UCC-11, listing all effective financing statements which name as debtor any Loan Party and which are filed in the offices referred to in paragraph (ii) above, together with copies of such financing statements, none of which, except as otherwise agreed by the Collateral Agent, shall cover any of the Collateral (other than Permitted Liens) and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such Liens;

(iv) the Collateral Assignment, duly executed by the Buyer;

(v) the Intercompany Subordination Agreement, duly executed by each Loan Party;

(vi) the Flow of Funds Agreement, duly executed by each party; thereto;

 

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(vii) a copy of the resolutions of each Loan Party, certified as of the Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;

(viii) a Perfection Certificate, duly executed by the parties thereto;

(ix) a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives;

(x) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions;

(xi) a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction;

(xii) a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Effective Date by an Authorized Officer of such Loan Party;

(xiii) an opinion of Hogan Lovells, counsel to the Loan Parties, as to such customary matters as the Agents may reasonably request;

(xiv) [Intentionally Omitted].

(xv) [Intentionally Omitted].;

(xvi) [Intentionally Omitted].

(xvii) a certificate of an Authorized Officer of each Loan Party, certifying as to the matters set forth in Section 5.01(b);

(xviii) a copy of (A) the Financial Statements and (B) the financial projections described in Section 6.01(g)(ii) hereof, certified as of the Effective Date as complying with the representations and warranties set forth in Section 6.01(g)(ii) by an Authorized Officer of the Ultimate Parent;

 

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(xix) a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent;

(xx) evidence of the insurance coverage required by Section 7.01 and the terms of each Security Agreement and such other insurance coverage with respect to the business and operations of the Loan Parties as the Collateral Agent may reasonably request, in each case, where reasonably requested by the Collateral Agent, with such endorsements as to the named insureds or loss payees thereunder as the Collateral Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Collateral Agent may request;

(xxi) evidence of the payment in full of all Indebtedness under the Existing Credit Facilities, together with (A) a termination and release agreement or deed of release (as applicable) with respect to each of the Existing Credit Facilities and all related documents, duly executed by the applicable Loan Parties and the Existing Lenders, (B) a termination of security interest in intellectual property for each assignment for security recorded by the Existing Lenders at the United States Patent and Trademark Office or the United States Copyright Office and covering any intellectual property of the Loan Parties, and (C) UCC-3 termination statements for all UCC-1 financing statements filed by the Existing Lenders and covering any portion of the Collateral;

(xxii) copies of the Acquisition Documents and, to the extent requested by the Collateral Agent, of the other Material Contracts as in effect on the Effective Date, certified as true and correct copies thereof by an Authorized Officer of the Administrative Borrower, together with a certificate of an Authorized Officer of the Administrative Borrower stating that such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;

(xxiii) such other customary agreements, instruments, opinions and other documents, each reasonably satisfactory to the Collateral Agent in form and substance, as the Collateral Agent may reasonably request.

(e) Material Adverse Effect . No event or development shall have occurred since December 31, 2014 which constitutes a “Company Material Adverse Effect” (as defined in the Acquisition Agreement).

(f) Consummation of Acquisition . Concurrently with the making of the initial Loans, (i) the Buyer shall have purchased pursuant to the Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived in a manner that is materially adverse to the Lenders’ interests) without the prior written consent of the Agents), and shall have become the owner, free and clear of all Liens, of all of the Acquisition Assets, (ii) the

 

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proceeds of the initial Loans shall have been applied in full to pay a portion of the Purchase Price payable pursuant to the Acquisition Documents for the Acquisition Assets and the closing and other costs relating thereto, and (iii) the Buyer shall have fully performed all of the obligations to be performed by it under the Acquisition Documents.

(g) Sponsor Investment . The Agents shall have received reasonably satisfactory evidence that the Permitted Holders made a cash equity contribution to Ultimate Parent of at least $118,000,000 plus fee and expenses related thereto (plus $26,900,000 of roll-over equity from existing management and $37,400,000 of roll-over equity from the Funko Sellers under the Acquisition Agreement) to effect the consummation of the Funko Acquisition.

(h) Availability . After giving effect to all Loans to be made on the Effective Date, the Letters of Credit to be issued on the Effective Date and the consummation of the Funko Acquisition (including the repayment of the Existing Credit Facilities), the Availability shall not be less than $20,000,000. The Administrative Borrower shall deliver to the Collateral Agent a certificate of the chief financial officer of the Administrative Borrower certifying as to the matters set forth above and containing the calculation of Availability.

Section 5.02 Conditions Precedent to All Loans and Letters of Credit . The obligation of any Agent or any Lender to make any Loan or of the L/C Issuer to issue any Letter of Credit after the Effective Date is subject to the fulfillment of each of the following conditions precedent:

(a) Representations and Warranties; No Event of Default . The following statements shall be true and correct, and the submission by the Administrative Borrower to the Administrative Agent of a Notice of Borrowing with respect to each such Loan, and the Borrowers’ acceptance of the proceeds of such Loan, or the submission by the Administrative Borrower of a Letter of Credit Application with respect to a Letter of Credit, and the issuance of such Letter of Credit, shall each be deemed to be a representation and warranty by each Borrower on the date of such Loan or the date of issuance of such Letter of Credit that: (i) the representations and warranties contained in ARTICLE VI and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the date of such Loan or such Letter of Credit are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof (including the representations and warranties set forth in the final sentence of Section 6.01(g)(i)), which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)), (ii) at the time of and after giving effect to the making of such Loan and the application of the proceeds thereof or at the time of issuance of such Letter of Credit, no Default or Event of Default has occurred and is continuing or would result from the making of the Loan to be made, or the issuance of such Letter of Credit to be issued, on such date and (iii) the conditions set forth in this Section 5.02 have been satisfied as of the date of such request.

 

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(b) Notices . The Administrative Agent shall have received (i) a Notice of Borrowing pursuant to Section 2.02 hereof and (ii) a Letter of Credit Application pursuant to Section 3.02(a) hereof, if applicable.

Section 5.03 Conditions Subsequent to Effectiveness . As an accommodation to the Loan Parties, the Agent and the Lenders have agreed to execute this Agreement and to make the Loans on the Effective Date notwithstanding unsatisfied conditions set forth below on or before the Effective Date. In consideration of such accommodation, the Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Agreement and the other Loan Documents, including, without limitation, those conditions set forth in Section 5.01, the Loan Parties shall satisfy each of the conditions subsequent set forth below on or before the date applicable thereto (it being understood that (i) the failure by the Loan Parties to perform or cause to be performed any such condition subsequent on or before the date applicable thereto shall constitute an Event of Default and (ii) to the extent that the existence of any such condition subsequent would otherwise cause any representation, warranty or covenant in this Agreement or any other Loan Document to be breached, the Required Lenders hereby waive such breach for the period from the Effective Date until the date on which such condition subsequent is required to be fulfilled pursuant to this Section 5.03):

(a) Within 45 days after the Effective Date (or such later date as may be permitted by the Agents in their sole discretion), the Agents shall have received Cash Management Agreements, each in form and substance reasonably satisfactory to the Agents, with respect to the Cash Management Accounts;

(b) Within 240 days of the Effective Date or such later date as may be agreed to by the Administrative Agent in its sole discretion, Parent shall have established master concentration account(s) with PNC for all of the Loan Parties’ Treasury Services. For purposes hereof, “Treasury Services” means demand deposit related services, investment services, deposits (on-site and remote), checking account services, lockbox services, controlled disbursement account services, manual payroll account services, account reconciliation services, foreign exchange services, debit card account services, ACH services, zero balance accounts, wire transfer services, and daily on-line reporting; and

(c) Within ten (10) Business Days following the Effective Date (or such later date as permitted by the Agents in their sole discretion), the Agents shall have received endorsements as to the named insureds, first mortgagees or loss payees under the insurance policies listed on Schedule 6.01(r) as required under Section 7.01(h) and providing that such policies may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent and each such named insured, first mortgagees or loss payee.

 

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ARTICLE VI.

REPRESENTATIONS AND WARRANTIES

Section 6.01 Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents, the Lenders and the L/C Issuer as follows:

(a) Organization, Good Standing, Etc . Each Loan Party and each of its Subsidiaries (i) is a corporation, limited liability company or limited partnership or other foreign business entity duly organized, validly existing and, where applicable, in good standing under the laws of the state or jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and, where applicable, is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, other than a jurisdiction where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.

(b) Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any applicable Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(c) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(d) Enforceability of Loan Documents . This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.

(e) Capitalization; Subsidiaries .

(i) On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and the issued and outstanding Equity Interests of the Parent are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent have been validly

 

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issued. Except as described on Schedule 6.01(e), as of the Effective Date, there are no outstanding debt or equity securities of the Parent and no outstanding obligations of the Parent convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent, or other obligations of the Parent to issue, directly or indirectly, any shares of Equity Interests of the Parent.

(ii) Schedule 6.01(e) is a complete and correct description of the name, jurisdiction of incorporation and ownership of the outstanding Equity Interests of such Subsidiaries of the Ultimate Parent in existence as of the Effective Date. All of the issued and outstanding shares of Equity Interests of such Subsidiaries have been validly issued and, in the case of any Subsidiary organized as a corporation under the laws of any jurisdiction of the United States, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as indicated on such Schedule, as of the Effective Date, all such Equity Interests is owned by the Ultimate Parent or one or more of its wholly-owned Subsidiaries, free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens that are consensual or contractual Liens). As of the Effective Date, there are no outstanding debt or equity securities of the Ultimate Parent or any of its Subsidiaries and no outstanding obligations of the Ultimate Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Ultimate Parent or any of its Subsidiaries, or other obligations of any Subsidiary to issue, directly or indirectly, any shares of Equity Interests of any Subsidiary of the Ultimate Parent.

(f) Litigation; Commercial Tort Claims . Except as set forth in Schedule 6.01(f), (i) there is no pending or, to the best knowledge of any Loan Party, threatened action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (A) could reasonably be expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect or (B) relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby and (ii) as of the Effective Date, none of the Loan Parties holds any commercial tort claims in respect of which a claim has been filed in a court of law or a written notice by an attorney has been given to a potential defendant.

(g) Financial Condition .

(i) The Financial Statements, copies of which have been delivered to each Agent, fairly present the consolidated financial condition of Funko and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of Funko and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP (subject to the absence of footnotes and year-end adjustments in the case of the Financial Statements described in clause (b) of the definition of Financial Statements). Except as set forth on Schedule 6.01(g), all material indebtedness and other material liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long-term commitments), direct or contingent, of Funko and its Subsidiaries are set forth in the Financial Statements, but excluding any liabilities incurred in the ordinary course of business since the date of the last Financial Statements. Since December 31, 2014, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

 

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(ii) Funko has heretofore furnished to each Agent and each Lender (A) (x) projected monthly income statements of Funko and its Subsidiaries for the period from January 1, 2015 through December 31, 2017 and (y) projected quarterly balance sheets, statements of operations and statements of cash flows of Funko and its Subsidiaries for the period from January 1, 2015 through December 31, 2017, (B) projected annual balance sheets, income statements and statements of cash flows of the Funko and its Subsidiaries for the Fiscal Years ending on January 1, 2015 through December 31, 2019, which projected financial statements shall be updated from time to time pursuant to Section 7.01(a)(vii) and (C) projected annual budget for Funko and its Subsidiaries, prepared on a monthly basis. Such budget, as updated from time to time pursuant to Section 7.01(a)(viii), has been prepared on a reasonable basis and in good faith by Funko, and is based on assumptions believed by Funko to be reasonable at the time made (it being understood that projections are uncertain by their nature and may not be realized).

(h) Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any domestic or foreign Requirement of Law, including, without limitation, any statute, legislation or treaty, any guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of any Governmental Authority, in each case, applicable to it or any of its property or assets, or (iii) any material term of any Contractual Obligation (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties, except to the extent that any such violation described in subclause (i) (solely in the case of a Subsidiary that it not a Loan Party), (ii) or (iii) could not reasonably be expected to result in a Material Adverse Effect, and no Default or Event of Default has occurred and is continuing.

(i) ERISA . Except as set forth on Schedule 6.01(i), (i) each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred for which there remains any outstanding material liability nor is any such Termination Event reasonably expected to occur with respect to any Employee Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Agents, is complete and correct and fairly presents the funding status of such Employee Plan as of the date of such report, and since the date of such report there has been no material adverse change in such funding status (other than resulting from changes in market value of assets of such Plan), (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service in the last two years with respect to any Employee Plan have been delivered to the Agents, (v) no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal Revenue Code at any time during the previous 60 months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. No Loan Party has incurred any withdrawal liability under ERISA with respect to any Multiemployer Plan that remains unsatisfied, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the future incur any such withdrawal liability. No Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) failed to pay any required installment or other payment

 

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required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (ii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course or claims that could not reasonably be expected to result in material liability) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan. Except as set forth on Schedule 6.01(i) and except as required by Section 4980B of the Internal Revenue Code or pursuant to executive employment agreements, as of the date hereof, no Loan Party or any of its Subsidiaries maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) for employees in the US which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or coverage after a participant’s termination of employment.

(j) Taxes, Etc. All national and Federal, and all material state, provincial and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party or any of its Subsidiaries have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries and which have become due and payable on or prior to the date hereof have been paid, except (i) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (ii) in the case of any Subsidiary that is not a Loan Party, relating to amounts that are not material. Each Loan Party is resident for Tax purposes only in the jurisdiction of its incorporation.

(k) Regulations T, U and X . No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.

(l) Nature of Business .

(i) No Loan Party is engaged in any business other than as described on Schedule 6.01(l) and other business reasonably related or ancillary thereto.

(ii) The Parent is a holding company and does not have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments) or engage in any operations or business (other than the ownership of its Subsidiaries).

 

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(m) Adverse Agreements, Etc . No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which has, or in the future could reasonably be expected to have, a Material Adverse Effect.

(n) Permits, Etc . Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business currently owned, leased, managed or operated, or to be acquired, by such Person, except where the failure to have, or be in compliance with, all such permits, licenses, authorizations, approvals, entitlements and accreditations could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect, except where such suspension, revocation, impairment, forfeiture or non-renewal could not reasonably be expected to have a Material Adverse Effect.

(o) Properties . (i) Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens. All such properties and assets are in good working order and condition for the purpose of the conduct of the business of the Loan Parties, ordinary wear and tear and casualty events excepted.

(ii) Schedule 6.01(o) sets forth a complete and accurate list, as of the Effective Date, of the location, by state and street address, of all real property owned or leased by each Loan Party and identifies the interest (fee or leasehold) of such Loan Party therein. As of the Effective Date, each Loan Party has valid leasehold interests in the Leases described on Schedule 6.01(o) to which it is a party. To the extent requested by the Administrative Agent, true, complete and correct copies of each such Lease have been delivered to the Agents prior to the Effective Date. Schedule 6.01(o) sets forth, as of the Effective Date, with respect to each such Lease, the commencement date, termination date, renewal options (if any) and annual base rents. As of the Effective Date, to the knowledge of the Loan Parties, each such Lease is valid and enforceable in accordance with its terms in all material respects and is in full force and effect. No consent or approval of any landlord or other third party in connection with any such Lease is necessary for any Loan Party to enter into and execute the Loan Documents to which it is a party, except as set forth on Schedule 6.01(o). To the best knowledge of any Loan Party, as of the Effective Date, no other party to any such Lease is in default of its material obligations thereunder, and no Loan Party (or any other party to any such Lease) has at any time delivered or received any notice of default which remains uncured under any such Lease and, as of the Effective Date, no event has occurred which, with the giving of notice or the passage of time or both, would constitute a default under any such Lease.

 

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(p) Full Disclosure . None of the other reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading; provided that, with respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time prepared.

(q) [ Intentionally omitted ].

(r) Environmental Matters . Except as set forth on Schedule 6.01(r), (i) the operations of each Loan Party are in compliance with all Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect; (ii) there has been no Release at any of the properties owned or operated by any Loan Party or a predecessor in interest, or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iii) no Environmental Action has been asserted against any Loan Party or any predecessor in interest nor does any Loan Party have knowledge or notice of any threatened or pending Environmental Action against any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iv) no Environmental Actions have been asserted against any facilities that may have received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (v) no property now or, to the knowledge of the Loan Parties as of the Effective Date, formerly owned or operated by a Loan Party has been used as a treatment or disposal site for any Hazardous Material; (vi) no Loan Party has failed to report to the proper Governmental Authority any Release which is required to be so reported by any Environmental Laws which could reasonably be expected to have a Material Adverse Effect; (vii) each Loan Party holds and is in compliance with all licenses, permits and approvals required under any Environmental Laws in connection with the operation of the business carried on by it, except for such licenses, permits and approvals as to which a Loan Party’s failure to maintain or comply with could not reasonably be expected to have a Material Adverse Effect; and (viii) no Loan Party has received any written notification pursuant to any Environmental Laws that (A) any work, repairs, construction or Capital Expenditures are required to be made as a condition of continued compliance with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (B) any license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

(s) Insurance . Each Loan Party keeps its property adequately insured and maintains (i) insurance to such extent and against such risks, including fire, as is customary with companies in the same or similar businesses, (ii) workmen’s compensation insurance in the amount required by applicable law, (iii) public liability insurance, which shall include product liability insurance, in the amount customary with companies in the same or similar business against claims for personal injury or death on properties owned, occupied or controlled by it, and (iv) such other insurance as may be required by law (including, without limitation, against larceny, embezzlement or other criminal misappropriation). Schedule 6.01(s) sets forth a list of all insurance maintained by each Loan Party on the Effective Date.

 

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(t) Use of Proceeds . The proceeds of the Loans shall be used to (a) finance a portion of the Purchase Price for the Funko Acquisition, (b) pay fees and expenses in connection with the transactions contemplated hereby, (c) refinance certain Indebtedness of the Borrowers, (d) fund working capital and other general corporate purposes of the Borrowers and (e) to fund the working capital adjustment in connection with the Acquisition, if any. The Letters of Credit will be used for working capital and other general corporate purposes.

(u) Solvency . After giving effect to the transactions contemplated by this agreement and before and after giving effect to each Loan and Letter of Credit, the Loan Parties are Solvent on a consolidated basis. No Borrower is contemplating either an Insolvency Proceeding or the liquidation of all or a major portion of such Loan Party’s assets or property.

(v) Location of Bank Accounts . Schedule 6.01(v) sets forth a complete and accurate list as of the Effective Date of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each Loan Party, together with a description thereof ( i.e. , the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof).

(w) Intellectual Property . Except as set forth on Schedule 6.01(w), each Loan Party owns or licenses or otherwise has the right to use all patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other intellectual property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(w) is, except for commercially available, off the shelf software and intellectual property registered outside the United States, a complete and accurate list as of the Effective Date of all such material registered patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other material registered intellectual property rights of each Loan Party. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened, except for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the best knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(x) Material Contracts . Set forth on Schedule 6.01(x) is a complete and accurate list as of the Effective Date of all Material Contracts of each Loan Party. As of the Effective Date, each such Material Contract (i) is in full force and effect and is binding upon and

 

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enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, and (ii) is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, of any other Person that could reasonably be expected to result in a Material Adverse Effect, any other party thereto.

(y) Investment Company Act . None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.

(z) Employee and Labor Matters . As of the Effective Date, there is (i) no unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance in existence or, to any Loan Party’s knowledge, pending or threatened against any Loan Party or (iii) to the best knowledge of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing activity taking place with respect to any of the employees of any Loan Party. No Loan Party or any of its Subsidiaries has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act (“ WARN ”) or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of any Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from any Loan Party 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 such Loan Party, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(aa) Customers and Suppliers . Except as could not reasonably be expected to result in a Material Adverse Effect, there exists no actual or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand; and there exists no present state of facts or circumstances that could reasonably be expected to give rise to or result in any such termination, cancellation, limitation, modification or change.

(bb) [ Intentionally Omitted ].

(cc) Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN . Schedule 6.01(cc) sets forth a complete and accurate list as of the date hereof of (i) the exact legal name of each Loan Party, (ii) the jurisdiction of organization of each Loan Party, (iii) the organizational identification number of each Loan Party (or indicates that such Loan Party has no organizational identification number), (iv) each place of business of each Loan Party, (v) the chief executive office of each Loan Party and (vi) if applicable, the federal employer identification number of each Loan Party.

 

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(dd) Locations of Collateral . There is no location at which any Loan Party has any Collateral (except for Inventory in transit) other than those locations listed on Schedule 6.01(dd) or Schedule 6.01(ee) and any other locations reported (or permitted to be exempt from reporting) pursuant to Section 7.01(a)(v). Schedule 6.01(dd) hereto contains a true, correct and complete list, as of the Effective Date, of the legal names and addresses of each warehouse at which Collateral of each Loan Party is stored.

(ee) Security Interests . The Security Agreement creates in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, a legal, valid and enforceable security interest in the Collateral secured thereby. Upon the filing of the UCC-1 financing statements and the recording of the Collateral Assignments for Security referred to in each Security Agreement in the United States Patent and Trademark Office, the United States Copyright Office or the equivalent authority in the other relevant jurisdictions, as applicable, such security interests in and Liens on the Collateral granted thereby shall be perfected, to the extent perfection can be accomplished through such filings, first priority security interests subject only to Permitted Liens, and no further recordings or filings are or will be required to maintain such perfected status of such security interests and Liens, other than (i) the filing of continuation statements in accordance with applicable law and (ii) the recording of the Collateral Assignments for Security pursuant to each Security Agreement in the United States Patent and Trademark Office, the United States Copyright Office or the equivalent authority, if any, in the other relevant jurisdictions, as applicable, with respect to after-acquired U.S. patent and trademark applications and registrations and U.S. copyrights.

(ff) [ Intentionally Omitted]

(gg) Acquisition Documents . The Parent has delivered to the Agents complete and correct copies of the Acquisition Documents, including all schedules and exhibits thereto. The Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the Acquisition Documents by Parent and the Buyer, and, to the knowledge of Parent, each of the other parties thereto, has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person. No material authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority is required for such sale other than such as have been obtained on or prior to the Effective Date or are not required to be obtained as a condition to closing thereunder. Each Acquisition Document is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms.

(hh) [ Intentionally Omitted ].

(ii) Anti-Terrorism Laws .

 

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(i) General . None of the Loan Parties nor any Affiliates of any Loan Parties, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Terrorism Laws.

(ii) None of the Loan Parties, nor any Affiliates of any Loan Parties, or their respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is any of the following (each a “ Blocked Person ”):

(A) a Person that is blocked pursuant to any of the OFAC Sanctions Programs, including a Person named on OFAC’s list of Specially Designated Nationals and Blocked Persons;

(B) a Person that is owned or controlled by, or that owns or controls, or that is acting for or on behalf of, any Person described in (A), above;

(C) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; and

(D) a Person that is affiliated or associated with a Person described in (A) through (C), above.

(iii) None of the Loan Parties, nor any of their agents acting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, unless authorized by the U.S. Government (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any OFAC Sanctions Programs.

(iv) Without limiting or contradicting (or being limited or contradicted by) the foregoing, (x) no Covered Entity is a Sanctioned Person and (y) no Covered Entity, either in its own right or through any third party, (A) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (C) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.

ARTICLE VII.

COVENANTS OF THE LOAN PARTIES

Section 7.01 Affirmative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party will, unless the Required Lenders shall otherwise consent in writing:

(a) Reporting Requirements . Furnish to each Agent:

 

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(i) as soon as available, and in any event within 30 days after the end of each fiscal month of the Borrowers commencing with the first fiscal month of the Borrowers ending after the Effective Date, internally prepared consolidated balance sheets, statements of operations and statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year, and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year (it being agreed that the requirements of this clause (A) shall not apply so long as there is no corresponding month in the preceding Fiscal Year that occurred after the Effective Date), and (B) the projections delivered pursuant to Section 7.01(a)(vii), all in reasonable detail, and, in the case of the financial statements, certified by an Authorized Officer of the Administrative Borrower as having been prepared on a basis consistent with prior practices and fairly presenting, in all material respects, the financial position of the Ultimate Parent and its Subsidiaries for such period, subject to the absence of footnotes and normal year-end adjustments;

(ii) [reserved];

(iii) as soon as available, and in any event within 120 days (or, in the case of Fiscal Year 2015, 135 days) after the end of each Fiscal Year of the Ultimate Parent and its Subsidiaries, consolidated and consolidating balance sheets, consolidated and consolidating statements of operations and consolidated and consolidating statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such Fiscal Year, and, with respect to such consolidated balance sheets, statements of operations, and statement of cash flow, accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted auditing standards, of one of the “Big Four” nationally recognized certified public accounting firms, McGladrey LLP, Grant Thornton LLP, BDO USA, LLP, Berntson Porter & Company PLLC or any other independent certified public accountants of recognized standing selected by the Ultimate Parent and reasonably satisfactory to the Agents (which opinion shall be without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit, or (z) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03);

(iv) (x) simultaneously with the delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a) or (y) within 15 days after delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (i) of this Section 7.01(a) for the fiscal months ending in March, June and September, commencing with the fiscal month ending on or about March 31, 2016, a certificate of an Authorized Officer of the Administrative Borrower (A) stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Ultimate Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Ultimate Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review

 

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has not disclosed, and such Authorized Officer has no knowledge of, the existence during such period of an Event of Default or Default or, if an Event of Default or Default existed, describing the nature and period of existence thereof and the action which the Ultimate Parent and its Subsidiaries propose to take or have taken with respect thereto and (B) (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03, (2) including a discussion and analysis of the financial condition and results of operations of the Ultimate Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the financial projections for such period and the figures for the corresponding period in the previous Fiscal Year and (3) attaching a schedule listing the Net Cash Proceeds from each Disposition and the amount of insurance proceeds or condemnation awards received by the Loan Parties during the immediately preceding fiscal quarter that are subject to the prepayment requirements set forth in Sections 2.05(c)(v) and (vii), respectively, and indicating whether such proceeds shall be used to purchase, replace, repair or restore properties or acquire assets used in such Person’s business within a period specified in such certificate not to exceed 180 days after the date of receipt of such proceeds and setting forth estimates of the amount of such proceeds to be so expended;

(v) as soon as available and in any event within 20 days after the end of each fiscal month of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, reports in form and detail reasonably satisfactory to the Agents and certified by the CFO, or other Authorized Officer of the Administrative Borrower as being accurate and complete (A) listing all Accounts Receivable of the Loan Parties as of the last day of such fiscal month, which shall include the amount and age of each such Account Receivable, showing separately those which are more than 30, 60, 90 and 120 days old and a description of all Liens, set-offs, defenses and counterclaims with respect thereto, together with a reconciliation of such schedule with the schedule delivered to the Agents pursuant to this clause (v)(A) for the immediately preceding fiscal month and such other information as any Agent may request, (B) listing all accounts payable of the Loan Parties as of the last day of such fiscal month which shall include the amount and age of each such account payable and such other information as any Agent may request, (C) listing separately all Inventory and In-Transit Inventory of the Loan Parties as of the last day of such fiscal month, and containing a breakdown of such Inventory by type and amount, the cost value thereof (by location), the warehouse and production facility location; provided that, notwithstanding the foregoing, Loan Parties shall not be obligated or required to include in such Inventory reporting under this clause (C) any breakdown of Inventory located at any location(s) which are exempt from reporting under clause (2) of the final proviso to this sentence (but further provided that nothing in the foregoing proviso shall be interpreted or construed to contradict or limit or provide any exception to the provisions of clause (i) of the definition of Eligible Inventory, and without limiting the generality of such clause (i), the parties hereto agree that no Inventory at any location shall be Eligible Inventory unless Loan Parties have elected to include a breakdown of the Inventory at such location in the most recently delivered Borrowing Base Certificate), (D) including a current schedule of (x) all locations of vendors and processors (including the legal name (and any applicable trade name) of such vendor or processor and the full address of such location) at which any Inventory is currently located and/or is customarily located from time to time, and (y) all other locations in the United States at which any Collateral (other than inventory in transit and mobile equipment, and items located at the premises of other Persons for service or repair in the ordinary course of business) is kept (including, in the case of

 

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any such location not owned by Loan Parties, the legal name (and any applicable trade name) of the landlord, warehouseman, bailee or other owner/operator of such location and the full address of such location); provided that, notwithstanding anything to the contrary in the foregoing or in Section 6.01(dd) hereof, (1) it shall not be a violation of this Section 7.01(a)(v) or of Section 6.01(dd) for any Inventory or Collateral to be kept at any location not previously disclosed to Administrative Agent so long as such location is disclosed to Administrative Agent in the first monthly collateral reports delivered by Loan Parties under this clause (D) following the first date at which any such Inventory or Collateral is kept at such location, and (2) Loan Parties shall not be obligated to report or disclose any such location, and may keep Inventory or other Collateral at any such location despite such non-disclosure, to the extent the aggregate Book Value of all Inventory and fair market value of all other Collateral held at any such non-disclosed individual location does not exceed $500,000 at any one time and the aggregate Book Value of all Inventory and fair market value of all other Collateral held at all such non-disclosed locations does not exceed $2,500,000 in the aggregate at any one time; along with such other information as any Agent may request, all in detail and in form reasonably satisfactory to the Administrative Agent and (E) including appropriate details of the royalty accrual account, the prepaid royalty account and the deferred revenue account.

(vi) as soon as available and in any event within 20 days after the end of each fiscal month (or, if (x) an Event of Default has occurred and is continuing or (y) average Availability is less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, within 3 Business Days after the end of each week, but only until such time as no Event of Default is continuing and the average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate) of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, a Borrowing Base Certificate, current as of the close of business on the last Business Day of the most recently ended month (or week, if applicable), supported by schedules showing the derivation thereof and containing such detail and other information the Administrative Agent may reasonably request from time to time, including, at any time when Eligible Special Inventory is permitted to be included in the calculation of the Borrowing Base, a schedule of the Eligible Special Inventory, itemizing the Book Value of the Eligible Special Inventory for each licensor in relation thereto; provided that (A) the Borrowing Base set forth in the Borrowing Base Certificate shall be effective from and including the date such Borrowing Base Certificate is duly received by the Administrative Agent but not including the date on which a subsequent Borrowing Base Certificate is received by the Administrative Agent, unless the Administrative Agent disputes the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof by notice of such dispute to the Administrative Borrower, provided that the Borrowers at their discretion may provide an updated Borrowing Base Certificate establishing a new Borrowing Base level based on a report of weekly or daily application of sales, cash and credits on Accounts Receivable of the Borrowers and weekly change in volume and value of Inventory of the Borrowers and (B) in the event of any dispute about the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof, the Administrative Agent’s good faith judgment shall control;

 

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(vii) as soon as available and in any event not later than 30 days after the end of each Fiscal Year, financial projections for the Ultimate Parent and its Subsidiaries, supplementing and superseding the financial projections referred to in Section 6.01(g)(ii)(A), prepared on a monthly basis (in the case of income statements) and a quarterly basis (in the case of balance sheets, statement of operations and statement of cash flows) and otherwise in form and substance reasonably satisfactory to the Agents, for the immediately succeeding Fiscal Year for the Ultimate Parent and its Subsidiaries, all such financial projections to be prepared on a reasonable basis and in good faith, and to be based on assumptions believed by the Ultimate Parent to be reasonable at the time made and from the best information then available to the Ultimate Parent;

(viii) [reserved];

(ix) [reserved];

(x) promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party by such Governmental Authority other than routine inquiries or other inquires where liability is not reasonably expected to exceed $1,000,000, but excluding any such documents or information the delivery of which would violate applicable law or result in a breach of a Loan Party’s attorney-client privilege;

(xi) as soon as practicable, and in any event within 3 days after an Authorized Officer of any Loan Party becomes aware of the occurrence of an Event of Default or Default or the occurrence of any event or development that such Authorized Officer has determined could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;

(xii) (A) as soon as practicable and in any event within 10 days after any Loan Party or any its Subsidiaries thereof knows that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect to any Employee Plan sponsored by any Loan Party has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, (B) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, and (D) promptly and in any event within 3 days after receipt thereof by any Loan Party from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such

 

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Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (E) promptly and in any event within 10 days after any Loan Party or any of its Subsidiaries thereof sends notice of a plan closing or mass layoff (as defined in WARN) to employees, copies of each such notice send by such Loan Party or any of its Subsidiaries;

(xiii) promptly, but in any event not later than 5 Business Days after, any determination by an Authorized Officer that an action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which could be reasonably expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect, notice thereof;

(xiv) as soon as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives relating to a default or claimed default or termination in connection with any Material Contract or any Acquisition Document;

(xv) as soon as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party;

(xvi) promptly after the sending or filing thereof, copies of any material notices not delivered in the ordinary course of business that any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange;

(xvii) promptly upon receipt thereof, copies of any management letters, if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;

(xviii) promptly upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent may from time to time may reasonably request;

(xix) promptly upon learning thereof, such information concerning any material loss or destruction of, or substantial damage to, any of the Collateral, in excess of $1,000,000 and

(xx) promptly notify the Agents if the President, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer or Global Head of Sales of any Loan Party becomes aware of any Accounts Receivable of any Borrower in excess of $1,000,000 individually arises out of contracts with the federal government of the United States (or any other United States federal Governmental Authority) which are either (x) eligible for assignment under the Federal Assignment of Claims Act or (y) otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section 9-406 of the Uniform Commercial Code, and in any such case, if applicable, such Borrower will execute any instruments and take any steps required by the Agents in order that either all monies due or to become due under any such Account Receivable shall be assigned to the Collateral Agent and notice thereof given to such Governmental Authority under the Federal Assignment of Claims Act or all necessary steps be taken to comply with such restrictions on assignment, as applicable.

 

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(b) Additional Guaranties and Collateral Security. Cause :

(i) each Subsidiary (other than any Excluded Subsidiary) of any Loan Party that is not in existence on the Effective Date, to execute and deliver to the Collateral Agent promptly and in any event within 10 Business Days after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Guarantor or a Borrower, as applicable (provided that the Accounts Receivable or Inventory of any new Borrower shall not be included in the Borrowing Base until the applicable conditions set forth in the definitions of Eligible Accounts Receivable and Eligible Inventory are satisfied), (B) a supplement to the Security Agreement, (C) one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien on such real property to the extent required by Section 7.01(o), and such other Real Property Deliverables as may be required by the Collateral Agent and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Documents or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations in a manner consistent with the assets of the other corresponding Loan Parties that constitute Collateral; and

(ii) each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 10 Business Days after the formation or acquisition of such Subsidiary a Pledge Amendment or other comparable document (as defined in the applicable Security Documents), together with (A) if applicable, certificates evidencing all of the Equity Interests of such Subsidiary, (B) if applicable, undated stock powers or other appropriate instruments of assignment executed in blank with signature guaranteed, (C) such opinions of counsel as the Collateral Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent.

(iii) Notwithstanding the foregoing, no CFC of a Loan Party shall be required to become a Loan Party hereunder (and, as such, shall not be required to deliver the documents required by clause (i) above) and no Equity Interests of such CFC shall be required to be pledged or otherwise subject to a Lien under the Loan Documents if in any such case (x) adverse tax consequences could reasonably be expected to result therefrom or (y) such guarantee is prohibited by any Requirement of Law; provided , however , that if the Equity Interests of such CFC are owned by a Loan Party, such Loan Party shall deliver, all such documents, instruments, agreements (excluding any pledge agreement or other security document governed by the laws of any jurisdiction other than a jurisdiction of the United States), and certificates described in clause (ii) above to the Collateral Agent, and take all actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect a first-priority Lien (subject to Permitted Liens) in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, in sixty five percent (65%) of the voting Equity Interests of such CFC and one hundred percent (100%) of all other Equity Interests of such CFC owned by such Loan Party.

 

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(c) Compliance with Laws, Etc. (i) Except as could not reasonably be expected to result in a Material Adverse Effect, comply and cause each of its Subsidiaries to comply, with all Requirements of Law (including, without limitation, all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), (ii) pay all national and Federal, and all material state and provincial taxes and governmental charges or levies imposed upon it or upon its income or profits or upon any of its properties, and (iii) pay all lawful claims which if unpaid could reasonably be expected to become a Lien or charge upon any of its properties, in each case, except in the cause of clauses (i) and (ii), (A) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (B) any such taxes, assessments and governmental charges the aggregate amount of which does not exceed $20,000.

(d) Preservation of Existence, Etc. (i) Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its (A) existence (except to the extent otherwise permitted to merge, dissolve or liquidate pursuant to this Agreement) and (B) material rights and privileges, and (ii) become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary unless the failure to comply with clause (i)(B) or to be so qualified and in good standing could not reasonably be expected to result in a Material Adverse Effect.

(e) Keeping of Records and Books of Account . Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

(f) Inspection Rights . Permit the Agents and representatives of any Agent at any time and from time to time during normal business and, so long as no Event of Default shall have occurred and be continuing and no Agent shall reasonably believe that an Event of Default has occurred and remains continuing, upon not less than 30 days’ prior notice, in a manner which reasonably endeavors to minimize disruption to the business of the Loan Parties and at the expense of the Borrowers (subject to the limitations set forth in Section 2.06(f)), to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals, (and, if reasonably requested under the circumstances, Phase I Environmental Site Assessments) or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives, in each case subject to the limitations set forth Section 2.06(f). In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).

 

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(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary in the proper conduct of its business in good working order and condition, ordinary wear and tear (and casualty events) excepted, and except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.

(h) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and in any event in an amount, adequacy and scope reasonably satisfactory to the Agents. All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear, in case of loss, under a standard non-contributory “lender” or “secured party” clause and are to contain such other provisions as the Agents may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered to the Collateral Agent and the policies shall include a lender loss payable and additional insured endorsement in favor of the Collateral Agent and such other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ prior written notice (or 10 days’ prior written notice in the case of non-payment of premiums) to the Collateral Agent of the exercise of any right of cancellation. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrowers’ expense and without any responsibility on the Agents’ part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

(i) Obtaining of Permits, Etc. Except as could not reasonably be expected to result in a Material Adverse Effect, obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all material permits, licenses, authorizations, approvals, entitlements and accreditations which are necessary or useful in the proper conduct of its business.

 

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(j) Environmental . (i) Keep any property either owned or operated by it or any of its Subsidiaries free of any Environmental Liens for which any Loan Party is liable; (ii) except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply with all Environmental Laws and provide to the Collateral Agent any documentation of such compliance which the Collateral Agent may reasonably request; (iii) (A) provide the Agents written notice within five (5) Business Days of any Release of a Hazardous Material in excess of any reportable quantity from or onto property owned or operated by it or any of its Subsidiaries and which any Loan Party is required to report to a Governmental Authority under any applicable Environmental Law, except to the extent that that the failure to issue such Report could not reasonably be expected to result in liability in excess of $500,000 and, (B) to the extent required by Environmental Laws in order to ensure material compliance therewith, take any Remedial Actions required to abate said Release, except to the extent that the failure to abate said Release could not reasonably be expected to result in a Material Adverse Effect; and (iv) provide the Administrative Agent with written notice within 10 days of the receipt of any of the following: (A) notice that an Environmental Lien has been filed against any property of any Loan Party or any of its Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Loan Party or any of its Subsidiaries; and (C) notice of a violation, citation or other administrative order which could reasonably be expected to have a Material Adverse Effect.

(k) Further Assurances . Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any other property of any Loan Party and its Subsidiaries that is required to be included in the Collateral, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Agent, each Lender and the L/C Issuer the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document. In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i) authorizes each Agent to execute any such agreements, instruments or other documents in such Loan Party’s name and to file such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes each Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the date hereof.

(l) Change in Collateral; Collateral Records . Advise the Agents promptly, in sufficient detail, of any material adverse change relating to the Lien granted on any Collateral.

(m) Landlord Waivers; Collateral Access Agreements . (i) At any time (a) any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at such locations) or (b) any books and records of Loan Parties (other than books and records that are duplicative of those maintained at other

 

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locations) are located on any real property of a Loan Party (whether such real property is now existing or acquired after the Effective Date) which is not owned by a Loan Party, use commercially reasonable efforts to obtain written subordinations or waivers, in form and substance reasonably satisfactory to Collateral Agent, of all present and future Liens to which the owner or lessor of such premises may be entitled to assert against the Collateral; provided that in the event the Loan Parties are unable to obtain any such written subordination or waiver with respect to any such location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception) or any such location at which books and records are located (which books and records are not duplicative of those at any other location for which Reserves have been imposed or for which a subordinated or waiver contemplated by this paragraph has been obtained), the Administrative Agent may, in its Permitted Discretion, establish such Reserves as it deems necessary (in any event not to exceed three months rent for the applicable location) with respect to such location not earlier than 90 days after the Effective Date; and

(ii) At any time any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at all such locations) is stored on the premises of a bailee, warehouseman, or similar party (excluding any vendor or processor), use commercially reasonable efforts to obtain written access agreements, in form and substance reasonably satisfactory to the Collateral Agent, providing for access to such Collateral located on such premises in order to remove such Collateral from such premises during an Event of Default; provided that in the event the Loan Parties are unable to obtain, or, in the case of any vendor or processor location, chose not to obtain, any such written access agreements with respect to any location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception or exception for vendor and processor locations), the Administrative Agent may, in its reasonable discretion, establish such Reserves as it deems necessary (in any event not to exceed three months of bailee fees, warehouseman fees, processing fees or similar fees owing to such bailee, warehouseman, vendor, processor or similar party for the applicable location) with respect to such location not earlier than 90 days after the Effective Date.

(n) Subordination . Cause all Indebtedness and other obligations now or hereafter owed by it to any of its Affiliates (other than, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout and the Funko Earnout Preferred Equity), to be subordinated in right of payment and security to the Indebtedness and other Obligations owing to the Agents and the Lenders in accordance with the Intercompany Subordination Agreement or such other subordination agreement in form and substance reasonably satisfactory to the Agents.

(o) After Acquired Real Property . Upon the acquisition by any Loan Party after the date hereof of any fee interest in any real property (wherever located) (each such interest being a “ New Facility ”) with a Current Value (as defined below) in excess of $500,000, promptly so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the “ Current Value ”). The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage and the other Real Property Deliverables. Upon receipt of such notice requesting a Mortgage, the Person that has acquired such New Facility shall

 

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promptly furnish to the Collateral Agent each of the applicable Real Property Deliverables, reasonably requested by the Collateral Agent. The Borrowers shall pay all fees and expenses, including reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 7.01(o).

(p) Fiscal Year . Cause the Fiscal Year of the Ultimate Parent and its Subsidiaries to end as set forth in the definition of “Fiscal Year” unless the Agents consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).

(q) [reserved].

(r) Lender Meetings . Upon the request of any Agent or the Required Lenders (which request, so long as no Event of Default shall have occurred and be continuing, shall not be made more than once during each Fiscal Year), participate in a meeting with the Agents and the Lenders at the Borrowers’ corporate offices (or at such other location as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders) at such time as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders.

Section 7.02 Negative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Subsidiaries that are Loan Parties as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof); sell any of its property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable) with recourse to it or any of its Subsidiaries; other than, as to all of the above, Permitted Liens; provided, that, no Liens shall be permitted on any assets included in the Borrowing Base other than (i) the Liens of the Collateral Agent for the benefit of the Agents and the Lenders, and (ii) non-consensual liens arising by operation of applicable Law (and not under any contract) that are otherwise Permitted Liens and which are either (x) inchoate or (y) junior to the Liens of the Collateral Agent for the benefit of the Agents and the Lenders (provided that Administrative Agent may impose Reserves with respect to any Liens under this subclause (y)).

(b) Indebtedness . Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.

 

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(c) Fundamental Changes; Dispositions . Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell, lease or sublease, transfer, assign or otherwise dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets (including accounts and rights to receive income), whether now owned or hereafter acquired (or agree to do any of the foregoing), or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided , however , that

(i) any wholly-owned Subsidiary of any Loan Party (other than Ultimate Parent or the Parent) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger or consolidation and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation;

(ii) any Loan Party and its Subsidiaries may (A) sell Inventory in the ordinary course of business, (B) dispose of obsolete, worn-out or surplus equipment in the ordinary course of business, (C) sell or otherwise dispose of other property or assets (other than Accounts Receivable or Inventory of any Loan Party) for an aggregate amount not less than the fair market value of such property or assets, so long as (x) at least 85% of the consideration for each such Disposition is for cash and (y) the Loan Parties will be in compliance with the financial covenants set forth in Section 7.03 calculated on a pro forma basis to give effect to such Disposition, (D) consummate any transactions constituting a Permitted Investment, (E) use or transfer money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, and (F) enter into non-exclusive license agreements with respect to intellectual property rights in the ordinary course of business, provided that the Net Cash Proceeds of such Dispositions (1) in the case of clause (C) above, do not exceed $2,500,000 in the aggregate in any Fiscal Year and (2) in all cases, the applicable requirements of Section 2.05(c)(v) are satisfied;

(iii) any dormant Subsidiary of any Loan Party (other than a Borrower or the Parent), owning assets the aggregate value of which does not exceed $100,000 at any time, may wind-up, liquidate or dissolve, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of any wind-up, liquidation or dissolution involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such winding up, liquidation or dissolution, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such dissolution or liquidation and (E) the aggregate value of all such dormant Subsidiaries that wind-up, liquidate or dissolve does not exceed $500,000; and

 

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(iv) any Subsidiary of any Loan Party (other than Ultimate Parent or the Parent), may merge with any Person in connection with a Permitted Acquisition, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of a merger involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation.

(d) Change in Nature of Business .

(i) Make, or permit any of its Subsidiaries to make, any change in the nature of its business as described in Section 6.01(l).

(ii) Permit the Parent to have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), engage in any operations or business (other than the ownership of its Subsidiaries), or own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments).

(e) Loans, Advances, Investments, Etc. Make or commit or agree to make, or permit any of its Subsidiaries make or commit or agree to make (other than non binding commitments or commitments contingent upon the Payment in Full of the Obligations or the obtaining of the requisite approvals hereunder), any Investment in any other Person except for Permitted Investments.

(f) Lease Obligations . Create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction (other than any existing sale and leaseback transaction in effect on the Effective Date), or (ii) for the payment of rent for any real or personal property under leases or agreements to lease other than Operating Lease Obligations entered into in the ordinary course of business and Capitalized Lease Obligations otherwise permitted hereunder.

(g) [Reserved].

 

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(h) Restricted Payments . (i) Declare or pay any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (ii) make any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any of its Subsidiaries or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (iii) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (iv) return any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (v) pay any management fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting or other services agreement to any of the shareholders or other equity holders of any Loan Party or any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party; provided , however , that (A) (I) the Loan Parties may make payments to or on behalf Parent or Ultimate Parent in an amount sufficient to pay franchise taxes and other costs and expenses required to be paid to maintain the legal existence of Parent and Ultimate Parent, solely to the extent such payments are actually applied to pay such franchise taxes, costs and expenses, (II) the Loan Parties may make payments to or on behalf of Parent and Ultimate Parent in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent and Ultimate Parent, in the case of this subclause (A)(II), in an aggregate amount not to exceed $100,000 in any Fiscal Year and (III) the Loan Parties may make tax distributions to or on behalf of the Ultimate Parent in amounts sufficient to enable Ultimate Parent to make all tax distributions required pursuant to the Funko LLC Agreement (it being understood that, to the extent any such tax distributions in accordance with Funko LLC Agreement results in distributions to (or for the account of) the Permitted Holders in excess of amounts required to be paid by the Permitted Holders in relation to the tax liabilities of its direct and indirect investors, the Permitted Holders shall cause such excess amount to be held by Acon Funko Investors, L.L.C. or a newly formed subsidiary that shall be a Guarantor (with recourse limited to the deposit account holding any such excess amount) in a controlled deposit account pledged to the Collateral Agent, and such excess amounts may be used to make equity contributions to the Borrower or to fund tax distributions to the Permitted Holders that would otherwise be permitted to be distributed by the Borrower to the extent such distributions are not duplicative of future permitted tax distributions made by the Loan Parties to their equity holders), (B) any Subsidiary of any Borrower may pay dividends to any Loan Party (other than the Parent or Ultimate Parent) or, in the case of any Subsidiary that is not a Loan Party, to any other Subsidiary, (C) the Parent and Ultimate Parent may pay dividends in the form of Qualified Equity Interests, (D) the Parent may pay Permitted Management Fees, so long as in the case of all such Permitted Management Fees other than reimbursement of expenses described in clause (b) of the definition of Permitted Management Fees: (1) no Default or Event of Default shall have occurred and be continuing, or would result from the making of such payment and (2) the Loan Parties would have been in compliance with the financial covenants set forth in Section 7.03 on a pro forma basis as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered under Section 7.01(a) after giving effect to such payment (as if made on the first day of such period); provided that to the extent that any Permitted

 

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Management Fees cannot be paid as a result of not satisfying all of the conditions described in clauses (1) and (2) above, such Permitted Management Fees shall be permitted to accrue and be paid at such time when (I) all conditions described in clauses (1) and (2) above are satisfied both before and after giving effect to such payment and (II) Availability is not less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount after giving effect to such payment, (E) the Loan Parties may make dividends, distributions or other payments for the purpose of making Permitted Funko Earnout Payments, (F) the Loan Parties may make dividends, distributions or other payments for the purpose of allowing the Ultimate Parent to make payments or redemptions in respect of all or a portion of the Funko Earnout Preferred Equity; provided , that any amounts funded by the Parent to the Ultimate Parent for such purpose may not be paid in cash if, at the time of the making of any such payment or after giving effect to the making of any such payment, (i) there exists an Event of Default or (ii) Availability is less than $15,000,000 (in which case the payment of such amount in cash shall be permitted at such time as the conditions described in clauses (i) and (ii) are no longer continuing) and (G) the Loan Parties may pay the Funko Transaction Costs incurred in connection with the closing on the Effective Date.

(i) Federal Reserve Regulations . Permit any Loan or the proceeds of any Loan under this Agreement to be used for any purpose that would cause such Loan to be a purpose credit under the provisions of Regulation T, U or X of the Board.

(j) Transactions with Affiliates . Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) in the ordinary course of business in a manner and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof, (ii) transactions with another Loan Party or transactions among Subsidiaries not involving any Loan Party, (iii) transactions permitted by Section 7.02(e) and Section 7.02(h) and (iv) sales of Qualified Equity Interests of the Ultimate Parent to Affiliates of the Ultimate Parent not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in connection therewith.

(k) Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries . Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Loan Party or any of its Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its Subsidiaries or (iv) to transfer any of its property or assets to any Loan Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the foregoing; provided , however , that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall prohibit or restrict compliance with:

(A) this Agreement and the other Loan Documents;

 

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(B) any agreements in effect on the date of this Agreement and described on Schedule 7.02(k) to the extent any encumbrance or restriction contained therein could reasonably be expected to have an adverse impact in any material respect on the interests of any Loan Party, the Agents or the Lenders;

(C) any applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);

(D) in the case of clause (iv), any agreement setting forth customary restrictions on the subletting, assignment or transfer of any property or asset that is the subject of any lease, license, conveyance, sale or similar transaction; or

(E) in the case of clause (iv), any agreement, instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto.

(l) Limitation on Issuance of Equity Interests . Except for Dispositions permitted by Section 7.02(c), issue or sell, or permit any of its Subsidiaries to issue or sell, any shares of its Equity Interests, any securities convertible into or exchangeable for its Equity Interests or any warrants; provided that the Ultimate Parent may issue Qualified Equity Interests so long as no Change of Control would result therefrom and any Subsidiary of the Ultimate Parent may issue Equity Interests to any Loan Party or any Subsidiary thereof.

(m) Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.

(i) Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any Indebtedness of a Loan Party or of any instrument or agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would (A) shorten the final maturity or average life to maturity of, or require any payment to be made earlier than the date originally scheduled on, such Indebtedness, (B) change the subordination provision, if any, of such Indebtedness in a manner adverse to the Lenders, or (C) otherwise be on terms and conditions that, taken as a whole, are adverse to the Lenders in any material respect.

(ii) (A) except for (w) intercompany loans, (x) the Obligations, (y) the termination of Capitalized Leases in respect of assets no longer used in the business of any Loan Party and (z) Indebtedness of any Subsidiary that is not a Loan Party, make any voluntary or optional payment (including, without limitation, any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any Indebtedness for borrowed money of any Loan Party (including, without limitation, by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Indebtedness when due), or refund, refinance, replace or exchange any other Indebtedness for any such Indebtedness (except to the extent such Indebtedness is otherwise

 

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permitted by the definition of “Permitted Indebtedness”), or (B) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement with respect thereto;

(iii) amend, modify or otherwise change its name, jurisdiction of organization, organizational identification number or FEIN, except that a Loan Party may (A) change its name, jurisdiction of organization, organizational identification number or FEIN in connection with a transaction permitted by Section 7.02(c) and (B) change its name upon at least 15 days’ prior written notice by the Administrative Borrower to the Collateral Agent (or such shorter period as may be approved by the Collateral Agent in its sole discretion) of such change and so long as, at the time of such written notification, such Person provides any financing statements or fixture filings necessary to perfect and continue perfected the Collateral Agent’s Liens;

(iv) amend, modify or otherwise change any of its Governing Documents, including, without limitation, by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it, with respect to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iv) that either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or

(v) agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment, modification, change or waiver would be adverse in any material respect to any Loan Party or any of its Subsidiaries or the Agent and the Lenders.

(n) Investment Company Act of 1940 . Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its Subsidiaries to become subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

(o) Compromise of Accounts Receivable . Compromise or adjust any material amount of the Accounts Receivable (or extend the time of payment with respect to any material amount of the Accounts Receivable), or accept any material returns of Inventory or grant any material discounts, allowances or credits or permit any of its Subsidiaries that are Loan Parties to do so other than as may be approved by the Administrative Agent in its sole discretion or (x) in the ordinary course of its business or (y) any such action outside the ordinary course of business made in the commercially reasonable business judgment of any Borrower exercised in good faith provided that (1) no such non-ordinary course of business action may involve any amount exceeding $5,000,000 in any one case and (2) in the event any one or more action(s) occurring during any period between delivery of Borrowing Base Certificates that involves an amount of $500,000 individually or in the aggregate in respect of Eligible Accounts Receivable that were included in the most recently delivered Borrower Base Certificate, Borrowers will deliver an updated Borrowing Base Certificate to Administrative Agent within five (5) Business Days.

 

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(p) [reserved].

(q) ERISA .

(i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section 4069 of ERISA; (ii) fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; or (iii) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Internal Revenue Code on or before the due date for such installment or other payment.

(ii) Non-U.S. Plan . Fail to make any contribution required by applicable law or by the terms of any Non-U.S. Plan

(r) Environmental . Except as could not reasonably be expected to result in a Material Adverse Effect, permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned or leased by it or any of its Subsidiaries, except in compliance with Environmental Laws.

(s) Limitations on Negative Pledges . Enter into, incur or permit to exist, or permit any Loan Party to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Loan Party to create, incur or permit to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following: (i) this Agreement and the other Loan Documents, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section 7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, (iv) customary provisions in leases, licenses and contracts restricting the assignment or sublet thereof, and (v) restrictions arising under applicable law.

(t) Anti-Terrorism Laws . (i) None of the Loan Parties, nor any of their Affiliates or agents shall:

(A) conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person in violation of any Anti-Terrorism Law,

 

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(B) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the OFAC Sanctions Programs in violation of any Anti-Terrorism Law, or

(C) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the OFAC Sanctions Programs, the USA PATRIOT Act or any other Anti-Terrorism Law.

(ii) The Borrowers shall deliver to the Lenders any certification or other evidence reasonably requested from time to time by any Lender in its Permitted Discretion, confirming the Borrowers’ compliance with this Section 7.02(t).

(iii) Without limiting or contradicting (or being limited or contradicted by) the foregoing, Loan Parties further covenants and agree that: (i) no Covered Entity will engage in activities that provide basis for designation as a Sanctioned Person, (ii) no Covered Entity, either in its own right or through any third party, will (A) have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (C) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (D) use the Loans to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law, (iii) the funds used to repay the Obligations will not be derived from any unlawful activity, (iv) each Covered Entity shall comply with all Anti-Terrorism Laws and (v) the Borrowers shall promptly notify the Agent in writing upon the occurrence of a Reportable Compliance Event.

Section 7.03 Financial Covenants . So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Senior Leverage Ratio . Permit the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be greater than the ratio set forth opposite such date:

 

Fiscal Quarter Ending On or About

   Senior Leverage Ratio

March 31, 2016

   2.35:1.00

June 30, 2016

   2.97:1.00

September 30, 2016

   3.76:1.00

December 31, 2016

   3.56:1.00

March 31, 2017

   3.40:1.00

June 30, 2017

   3.26:1.00

September 30, 2017

   3.25:1.00

December 31, 2017 and each Fiscal Quarter ended thereafter

   2.83:1.00

 

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(b) Fixed Charge Coverage Ratio . Permit the Fixed Charge Coverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be less than the ratio set forth opposite such date:

 

Fiscal Quarter Ending On or About

   Fixed Charge Coverage Ratio

March 31, 2016

   1.05:1.00

June 30, 2016

   1.05:1.00

September 30, 2016

   1.05:1.00

December 31, 2016

   1.10:1.00

March 31, 2017

   1.10:1.00

June 30, 2017

   1.10:1.00

September 30, 2017

   1.10:1.00

December 31, 2017 and each Fiscal Quarter ended thereafter

   1.10:1.00

ARTICLE VIII.

MANAGEMENT, COLLECTION AND STATUS OF

ACCOUNTS RECEIVABLE AND OTHER COLLATERAL

Section 8.01 Collection of Accounts Receivable; Management of Collateral . (a) The Loan Parties shall (i) establish and maintain cash management services of a type and on terms reasonably satisfactory to the Agents (it being understood that the cash management services in effect on the Effective Date are satisfactory to the Agents) at one or more of the banks set forth on Schedule 8.01 (each a “ Cash Management Bank ”) and (ii) deposit or cause to be deposited promptly, and in any event no later than the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral, all Collections (of a nature susceptible to a deposit in a bank account), and all other amounts received by any Loan Party (including payments made by Account Debtors directly to any Loan Party and remittances on credit card sales) into a Cash Management Account.

 

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(b) Subject to Section 5.03(a) and 8.01(a), and except as otherwise agreed by the Agents, the Loan Parties shall, with respect to each Cash Management Account, deliver to the Collateral Agent a Cash Management Agreement with respect to such Cash Management Account. The Loan Parties shall not maintain cash, Cash Equivalents or other amounts in any deposit account or securities account, unless the Collateral Agent shall have received a Cash Management Agreement in respect of each such deposit account or securities account (other than accounts excluded from the definition of “Cash Management Accounts”).

(c) [Intentionally Omitted].

(d) Upon the terms and subject to the conditions set forth in a Cash Management Agreement with respect to a Cash Management Account, all amounts received in such Cash Management Account shall at the Collateral Agent’s direction be wired each Business Day into the applicable Administrative Agent’s Account, except that, so long as (i) no Event of Default has occurred and is continuing and (ii) average Availability is greater than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, no Agent will direct any Cash Management Bank to transfer funds in such Cash Management Account to the Administrative Agent’s Account. If the Collateral Agent is sweeping cash from the Cash Management Accounts into the Administrative Agent’s Account in accordance with the immediately preceding sentence, the Collateral Agent shall discontinue such cash sweep and allow the Loan Parties to withdraw cash from the Cash Management Accounts so long as (A) average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate and (B) the Cash Management Bank allows for the reversion of such cash dominion. For the avoidance of any doubt, during any cash dominion period as provided for in the preceding sentence, (x) Administrative Agent may sweep cash from any Cash Management Account maintained with Administrative Agent to the Administrative Agent’s Account, and may request that Collateral Agent (and upon any such request Collateral Agent shall) sweep cash from the Cash Management Accounts maintained with any bank or financial institution other than Administrative Agent to the Administrative Agent’s Account.

(e) So long as no Default or Event of Default has occurred and is continuing, the Borrowers may, upon notice to the Collateral Agent, amend Schedule 8.01(A) to add or replace a Cash Management Bank or Cash Management Account; provided , however , that (i) such prospective Cash Management Bank shall be reasonably satisfactory to the Collateral Agent, and except in the case of accounts established with the Administrative Agent, the Collateral Agent shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) prior to the time of the opening of such Cash Management Account, the applicable Loan Party and such Cash Management Bank shall have executed and delivered to the Collateral Agent a Cash Management Agreement. Each Loan Party shall close any of its Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event, to the extent reasonably practicable, within 30 days of

 

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notice from the Collateral Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion, or that the operating performance, funds transfer, or availability procedures or performance of such Cash Management Bank with respect to Cash Management Accounts or the Collateral Agent’s liability under any Cash Management Agreement with such Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion.

(f) The Cash Management Accounts shall be cash collateral accounts, with all cash, checks and similar items of payment in such accounts securing payment of the Obligations, and in which the Loan Parties are hereby deemed to have granted a Lien to the Collateral Agent for the benefit of the Agents and the Lenders. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by any Loan Party from any of its Account Debtors, as proceeds from Accounts Receivable of such Loan Party or (subject to the provisions of Section 2.05(c)(v) and (vii) with respect to the proceeds of Dispositions) as proceeds of any other Collateral shall be held by such Loan Party in trust for the Agents and the Lenders and if of a nature susceptible to a deposit in a bank account, upon receipt be deposited by such Loan Party in original form and no later than the next Business Day after receipt thereof into a Cash Management Account. During any time when the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d) above, no Loan Party shall commingle such collections with the proceeds of any assets not included in the Collateral. No checks, drafts or other instrument received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such instruments have actually been collected.

(g) Nothing herein contained shall be construed to constitute any Agent as agent of any Loan Party for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.

Section 8.02 Covenant Re-Dating; Pledge of Credit . (a) No Loan Party shall re-date any invoice or sale or make sales on extended dating beyond that which is customary in the ordinary course of its business and in the industry; and (b) no Loan Party is or shall be entitled to pledge any Agent’s or any Lender’s credit on any purchases or for any purpose whatsoever.

Section 8.03 Collateral Custodian . Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent or its designee may at any time and from time to time employ and maintain on the premises of any Loan Party a custodian selected

 

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by the Collateral Agent or its designee who shall have full authority to do all acts necessary to protect the Agents’ and the Lenders’ interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate with any such custodian and to do whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral. All costs and expenses incurred by the Collateral Agent or its designee by reason of the employment of the custodian shall be the responsibility of the Borrowers and charged to the Loan Account.

ARTICLE IX.

EVENTS OF DEFAULT

Section 9.01 Events of Default . If any of the following Events of Default shall occur and be continuing:

(a) any Borrower shall fail to pay any principal of or interest on any Loan, any Agent Advance, any Reimbursement Obligation or any fee, indemnity or other amount payable under this Agreement or any other Loan Document when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and, in the case of interest, fees and indemnities, such failure continues for a period of three Business Days; provided that, in the case of any mandatory prepayment of principal in respect of the Revolving Loans under Section 2.05(c)(i) that becomes due and payable solely because of the imposition by Administrative Agent of a new Reserve, no Event of Default shall arise under this paragraph (a) until any failure to pay such mandatory prepayment shall continue for a period of ten (10) Business Days;

(b) any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C Issuer pursuant to any Loan Document, which representation or warranty is subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any respect when made or deemed made; or any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C Issuer pursuant to any Loan Document, which representation or warranty is not subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any material respect when made or deemed made;

(c) any Loan Party shall fail to perform or comply with any covenant or agreement contained in (i) Sections 7.01(a)(xi), 7.01(d)(i)(A), 7.01(f), 7.01(n), 7.02, 7.03 or ARTICLE VIII, (ii) Section 7.01(a)(xii) and Section 7.01(b), and such failure, if capable of being remedied, shall remain unremedied for 5 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party and (iii) Sections 7.01(a)(i), 7.01(a)(iii), 7.01(a)(iv), 7.01(a)(v), 7.01(a)(vi), 7.01(a)(vii), 7.01(a)(x), 7.01(a)(xiii), 7.01(a)(xiv), 7.01(h) and 7.01(l), and such failure, if capable of being remedied, shall remain unremedied for 3 Business Days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party, provided that Borrower may not exercise its rights of remedy under this clause (iii) more than one time in any calendar year;

 

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(d) any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be performed or observed by it and, except as set forth in subsections (a), (b) and (c) of this Section 9.01, such failure, if capable of being remedied, shall remain unremedied for 30 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party;

(e) any Loan Party or any of its Subsidiaries shall fail to pay any of its Indebtedness in excess of $2,500,000 (it being understood that, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout that are paid within the time frame provided for in the Funko LLC Agreement through the issuance of Funko Earnout Preferred Equity shall not constitute a failure to pay such Indebtedness), or any payment of principal, interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;

(f) any Loan Party or any of its Subsidiaries (i) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f);

(g) any proceeding shall be instituted against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, suspension of payments, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian, administrator or other similar official for any such Person or for any substantial part of its property, and, in the case of the Loan Parties, either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against any such Person or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur;

 

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(h) [Intentionally Omitted].

(i) any provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document;

(j) any Security Document, any Mortgage or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any Collateral purported to be covered thereby;

(k) one or more judgments, orders or awards (or any settlement of any claim that, if breached, could result in a judgment, order or award) for the payment of money exceeding $2,500,000 in the aggregate shall be rendered against any Loan Party and remain unsatisfied and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement, (ii) there shall be a period of 30 consecutive days after entry thereof during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, shall not be in effect, (iii) at any time during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, is in effect, such judgment, order, award or settlement is not bonded to the extent required to keep such stay in effect or (iv) any Lien arising from any such judgment, order, award or settlement over the assets of any Loan Party becomes enforceable and any step (including the taking of possession or the appointment of a receiver, managers or similar person) is taken to enforce that Lien; provided , however , that any such judgment, order, award or settlement shall not give rise to an Event of Default under this subsection (k) if and for so long as (A) the amount of such judgment, order, award or settlement is covered by a valid and binding policy of insurance between the defendant and the insurer covering full payment thereof and (B) such insurer has been notified, and has not disputed the claim made for payment, of the amount of such judgment, order, award or settlement;

(l) any cessation of a substantial part of the business of any Loan Party for a period which could reasonably be expected to have a Material Adverse Effect on the ability of the Loan Parties to continue its business on a profitable basis;

(m) the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Loan Party, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect;

 

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(n) the indictment of any Loan Party under any criminal statute, or commencement of criminal or civil proceedings against any Loan Party or any of its Subsidiaries, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture to any Governmental Authority of any material portion of the property of such Person;

(o) any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been given to any Loan Party by any Agent, (i) such Termination Event (if correctable) shall not have been corrected, and (ii) the Termination Event is reasonably anticipated to result in liability in excess of $2,500,000; or

(p) a Change of Control shall have occurred;

then, and in any such event, the any Agent may, and shall at the request of the Required Lenders, by notice to the Administrative Borrower, (i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the Loans and Reimbursement Obligations then outstanding to be due and payable, whereupon all or such portion of the aggregate principal of all Loans and Reimbursement Obligations, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and the other Loan Documents shall become due and payable immediately, together with the payment of the Applicable Prepayment Premium (if any) with respect to the Commitments so terminated and the Loans so repaid, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under applicable law, hereunder and under the other Loan Documents; provided , however , that upon the occurrence of any Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all Loans and Reimbursement Obligations then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement and the other Loan Documents shall become due and payable automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by each Loan Party. Subject to Section 4.03(b), the Administrative Agent may, after the occurrence and during the continuation of any Event of Default, require the Borrowers to Cash Collateralize each Letter of Credit then outstanding.

Notwithstanding anything to the contrary contained in Section 9.01, if the Loan Parties fail to comply with any financial covenant set forth in Section 7.03 as of any date or for any period, until the expiration of the tenth (10 th ) Business Day following the date on which financial statements are required to be delivered with respect to the applicable Fiscal Quarter hereunder, the Ultimate Parent may sell or issue common Qualified Equity Interest of the Ultimate Parent (the “ Permitted Cure Stock ”) the proceeds of which shall be deemed to increase Consolidated EBITDA (solely for purposes of Section 7.03(a) and (b) and not for any other purpose) on a dollar-for-dollar basis for the Fiscal Quarter most recently ended, with the effect that such financial covenants shall be recalculated on a pro forma basis, and, if after giving effect to such recalculation, the Borrowers are in compliance with such financial covenants, the Borrowers shall be deemed to have satisfied such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith;

 

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provided , however , that (i) such proceeds do not exceed the aggregate amount necessary to cure such Event of Default under Section 7.03(a) and (b) for the applicable period, (ii) the cure right under this paragraph shall be available up to four non-consecutive times during the term of this Agreement, (iii) the amount of proceeds arising from the issuance of the Permitted Cure Stock shall not represent more than 20% of Ultimate Parent’s TTM Consolidated EBITDA for the most recently ended Fiscal Quarter, (iv) Indebtedness shall not be deemed reduced by any payment made pursuant to Section 2.05(c)(ix) at any time that such related Consolidated EBITDA increase pursuant to this paragraph exists and (v) during the 10 Business Day period referred to above, neither the Administrative Agent nor any Lender may exercise any rights or remedies under Section 9.01 (or under any other Loan Document) on the basis of any actual or purported Event of Default under Section 9.01(c).

ARTICLE X.

AGENTS

Section 10.01 Appointment . Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to perform the duties of each such Agent as set forth in this Agreement including: (i) to receive on behalf of each Lender any payment of principal of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Lenders and paid to such Agent, and, subject to Section 2.02 of this Agreement, to distribute promptly to each Lender its Pro Rata Share of all payments so received; (ii) to distribute to each Lender copies of all material notices and agreements received by such Agent and not required to be delivered to each Lender pursuant to the terms of this Agreement, provided that the Agents shall not have any liability to the Lenders for any Agent’s inadvertent failure to distribute any such notices or agreements to the Lenders; (iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, and related matters and to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (iv) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Loan Document; (v) to make the Loans and Agent Advances, for such Agent or on behalf of the applicable Lenders as provided in this Agreement or any other Loan Document; (vi) to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by such Agent of the rights and remedies specifically authorized to be exercised by such Agent by the terms of this Agreement or any other Loan Document; (vii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document; and (viii) subject to Section 10.03 of this Agreement, to take such action as such Agent deems appropriate on its behalf to administer the Loans and the Loan Documents and to exercise such other powers delegated to such Agent by the terms hereof or the other Loan Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and instructions and the power to make or to refuse to make determinations and calculations) together with such powers as are reasonably incidental thereto to carry out the purposes hereof and thereof. As to any matters not expressly provided

 

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for by this Agreement and the other Loan Documents (including, without limitation, enforcement or collection of the Loans), the Agents shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions of the Required Lenders shall be binding upon all Lenders and all makers of Loans; provided , however , that the L/C Issuer shall not be required to refuse to honor a drawing under any Letter of Credit and the Agents shall not be required to take any action which, in the reasonable opinion of any Agent, exposes such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law.

Section 10.02 Nature of Duties; Delegation . (a) The Agents shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents. The duties of the Agents shall be mechanical and administrative in nature. The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan Parties and the value of the Collateral, and the Agents shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before the initial Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this Agreement or any other Loan Document. If any Agent seeks the consent or approval of the Required Lenders to the taking or refraining from taking any action hereunder, such Agent shall send notice thereof to each Lender. Each Agent shall promptly notify each Lender any time that the Required Lenders have instructed such Agent to act or refrain from acting pursuant hereto.

(b) Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article X to the extent provided by the applicable Agent.

(c) An Agent may employ agents and attorneys in fact and shall not be liable for the default or misconduct of any such agents or attorneys in fact selected by such Agent with reasonable care.

Section 10.03 Rights, Exculpation, Etc . The Agents and their directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by them under or in connection with this Agreement or the other Loan Documents, except for their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Loan as the owner thereof until the Agents receive written notice

 

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of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form reasonably satisfactory to the Agents; (ii) may consult with legal counsel (including, without limitation, counsel to any Agent or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts; (iii) make no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall not be deemed to have made any representation or warranty regarding the existence, value or collectibility of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. The Agents shall not be liable for any apportionment or distribution of payments made in good faith pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount which they are determined to be entitled. The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to grant, and if such instructions are promptly requested, the Agents shall be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such instructions from the Required Lenders (unless unanimity is required). Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (unless unanimity is required).

Section 10.04 Reliance . Each Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.

Section 10.05 Indemnification . To the extent that any Agent or the L/C Issuer is not reimbursed and indemnified by any Loan Party, and whether or not such Agent or the L/C Issuer has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent or the L/C Issuer, reimburse and indemnify such Agent and the L/C Issuer from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, client charges and expenses of counsel or any other advisor to such Agent or the L/C Issuer), advances or

 

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disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Agent or the L/C Issuer in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by such Agent or the L/C Issuer under this Agreement or any of the other Loan Documents, in proportion to each Lender’s Pro Rata Share, including, without limitation, advances and disbursements made pursuant to Section 10.08; provided , however , that (a) no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination that such liability resulted from such Agent’s or the L/C Issuer’s gross negligence or willful misconduct, and (b) only the Revolving Loan Lenders shall be obligated to indemnify the L/C Issuer for any amounts owing to the L/C Issuer pursuant to this Section 10.05. The obligations of the Lenders under this Section 10.05 shall survive the Payment in Full of the Loans and the termination of this Agreement.

Section 10.06 Agents Individually . With respect to its Pro Rata Share of the Total Commitment hereunder and the Loans made by it, each Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or maker of a Loan. The terms “Lenders” or “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender or one of the Required Lenders. Each Agent and their Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the other Lenders.

Section 10.07 Successor Agent . (a) Any Agent may at any time give at least thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days prior written notice of its resignation to the Lenders, the L/C Issuer and the Administrative Borrower, provided that, if the continuing Agent assumes all of the resigning Agent’s duties hereunder, such resigning Agent may provide notice on the effective date of its resignation. Upon receipt of any such notice of resignation, (i) the Required Lenders shall have the right, with the consent of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Collateral Agent, and (ii) the Collateral Agent shall have the right, with the consent of the Required Revolving Loan Lenders and of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Administrative Agent. If no such successor Agent shall have been so appointed by the Required Lenders or Collateral Agent, as applicable, and shall have accepted such appointment within thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders and the L/C Issuer, appoint a successor Agent. Whether or not a successor Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

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(b) With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by such Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through such retiring Agent shall instead be made by or to the surviving Agent directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s Agent’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article, Section 12.04 and Section 12.16 shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the retiring Agent was acting as Agent.

Section 10.08 Collateral Matters .

(a) Each Agent may from time to time make such disbursements and advances (“ Agent Advances ”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate.

(b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b).

 

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(c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided , however , that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.

(d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.

(e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the

 

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Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Section 10.09 Agency for Perfection . Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Agents and the Lenders as secured party. Should the Administrative Agent or any Lender obtain possession or control of any such Collateral, the Administrative Agent or such Lender shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s instructions. In addition, the Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.

Section 10.10 No Reliance on any Agent’s Customer Identification Program Certifications From Banks and Participants; USA PATRIOT Act .

(a)Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other requirements imposed by the USA PATRIOT Act or the regulations issued thereunder, including the regulations set forth in 31 CFR § 103.121, as hereafter amended or replaced (“ CIP Regulations ”), or any other Anti-Terrorism Laws or the equivalent on any applicable jurisdiction, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act. Each Lender, Affiliate, participant or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations or any equivalent provisions in any applicable jurisdiction.

(b) Each Lender or assignee or participant of a Lender that is not incorporated under the Laws of the United States of America or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to

 

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supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to each Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1) within ten (10) days after the Effective Date, and (2) as such other times as are required under the USA PATRIOT Act.

(c) The USA PATRIOT Act requires all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, any Agent or Lender may from time to time request, and each Loan Party shall provide to such Agent or Lender, such Borrower’s name, address, tax identification number and/or such other identifying information as shall be necessary for Lender to comply with the USA PATRIOT Act and any other Anti-Terrorism Law.

Section 10.11 No Third Party Beneficiaries . The provisions of this Article are solely for the benefit of the Agents, the Lenders and the L/C Issuer, and, except as provided in Sections 10.07 and 10.08, no Loan Party shall have rights as a third-party beneficiary of any of such provisions.

Section 10.12 No Fiduciary Relationship . It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

Section 10.13 Reports; Confidentiality; Disclaimers . By becoming a party to this Agreement, each Lender:

(a) is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report with respect to the Ultimate Parent or any of its Subsidiaries (each, a “ Report ”) prepared by or at the request of such Agent, and each Agent shall so furnish each Lender with each such Report,

(b) expressly agrees and acknowledges that the Agents (i) do not make any representation or warranty as to the accuracy of any Reports, and (ii) shall not be liable for any information contained in any Reports,

(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other party performing any audit or examination will inspect only specific information regarding the Ultimate Parent and its Subsidiaries and will rely significantly upon the Ultimate Parent’s and its Subsidiaries’ books and records, as well as on representations of their personnel,

(d) agrees to keep all Reports and other material, non-public information regarding the Ultimate Parent and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 12.21, and

 

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(e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of the Borrowers, and (ii) to pay and protect, and indemnify, defend and hold any Agent and any other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys fees and costs) incurred by any such Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

(f) If another division or department of an Agent receives information, it may be treated as confidential to that division or department and the relevant Agent will not be deemed to have notice of it.

Section 10.14 Conduct of business by the Lenders and Agents . No provision of this Agreement will: (a) interfere with the right of any Lender or Agent to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; (b) oblige any Lender or Agent to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or (c) oblige any Lender or Agent to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Taxes.

ARTICLE XI.

GUARANTY

Section 11.01 Guaranty .

(a) Each Loan Party hereby jointly and severally and unconditionally and irrevocably guarantees the punctual payment when due and payable (whether at stated maturity, on demand, by acceleration or otherwise), of all Obligations of the Borrowers, now or hereafter existing under any Loan Document, whether for principal, interest (including, without limitation, all interest that accrues after the commencement of any Insolvency Proceeding with respect to any Borrower, whether or not a claim for post-filing interest is allowed in such Insolvency Proceeding), Letter of Credit Obligations, fees, commissions, expense reimbursements, indemnifications or otherwise, and whether accruing before or subsequent to the commencement of any Insolvency Proceeding with respect to any Borrower (notwithstanding the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code), and the due performance and observance by the Borrowers of their other Obligations now or hereafter existing in respect of the Loan Documents (such Obligations, to the extent not paid or performed by the Borrowers, being the ” Guaranteed Obligations ”, and agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer in enforcing any rights under the guaranty set forth in this ARTICLE XI.

 

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(b) Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the applicable Guaranteed Obligations and would be owed by the Borrowers to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer under any Loan Document but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving the Borrowers. Notwithstanding any of the foregoing, Guaranteed Obligations shall not include any Excluded Hedge Liabilities. In no event shall the obligation of any Guarantor hereunder exceed the maximum amount such Guarantor could guarantee under any Debtor Relief Law.

Section 11.02 Guaranty Absolute . Each Loan Party jointly and severally guarantees that the Guaranteed Obligations, will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agents, the Lenders, the Bank Product Providers or the L/C Issuer with respect thereto. Each Guarantor party hereto agrees that this ARTICLE XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by any Agent or any Lender to any Collateral. The obligations of each Guarantor under this ARTICLE XI are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor party hereto to enforce such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in any such action or actions. The liability of each Guarantor party hereto under this ARTICLE XI shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor party hereto hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the applicable Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the applicable Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise and/or the making available of additional or new type of extensions of credit to any Loan Party that are of a different kind or nature from the types of extensions of credit available to the Loan Parties (or any of them) under the Loan Documents on the Effective Date;

(c) any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the applicable Guaranteed Obligations;

(d) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including, without limitation, any Agent, any Lender, any Bank Product Provider or the L/C Issuer;

 

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(e) any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Loan Party; or

(f) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Agents, the Lenders, the Bank Product Providers or the L/C Issuer that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.

This ARTICLE XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Agents, the Lenders, the Bank Product Providers, the L/C Issuer or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made.

Section 11.03 Waiver . Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this ARTICLE XI and any requirement that the Agents, the Lenders, the Bank Product Providers or the L/C Issuer exhaust any right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any Agent, any Lender, any Bank Product Provider or the L/C Issuer to seek payment or recovery of any amounts owed under this ARTICLE XI from any one particular fund or source or to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement that any Agent, any Lender, any Bank Product Provider, any Bank Product Provider or the L/C Issuer protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to any Guarantor. Each Guarantor agrees that the Agents, the Lenders, the Bank Product Providers and the L/C Issuer shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Guaranteed Obligations. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly made in contemplation of such benefits. Each Guarantor hereby waives any right to revoke this ARTICLE XI, and acknowledges that this ARTICLE XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

Section 11.04 Continuing Guaranty; Assignments . This ARTICLE XI is a continuing guaranty and shall (a) in the case of each Loan Party, remain in full force and effect until the later of the Payment in Full of the Guaranteed Obligations (other than indemnification obligations as to which no claim has been made) and all other amounts payable under this ARTICLE XI and the Final Maturity Date and (b) inure to the benefit of and be enforceable by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer and their successors, pledgees, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, its Loans, the Reimbursement Obligations and the Letter of Credit Obligations owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07.

 

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Section 11.05 Subrogation . No Guarantor party hereto will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this ARTICLE XI, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agents, the Lenders, the Bank Product Providers and the L/C Issuer against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall have been Paid in Full and the Final Maturity Date shall have occurred. If any amount shall be paid to any Guarantor party hereto in violation of the immediately preceding sentence at any time prior to the later of (x) the Payment in Full of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI and (y) the Final Maturity Date, such amount shall be held in trust for the benefit of the Agents, the Lenders, the Bank Product Providers and the L/C Issuer and shall forthwith be paid to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer to be credited and applied to the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Guaranteed Obligations, or other amounts payable under this ARTICLE XI thereafter arising. If (i) any Guarantor party hereto shall make payment to the Agents. the Lenders, the Bank Product Providers and the L/C Issuer of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall be Paid in Full and (iii) the Final Maturity Date shall have occurred, the Agents, the Lenders, the Bank Product Providers and the L/C Issuer will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor party hereto of an interest in the Guaranteed Obligations, resulting from such payment by such Guarantor party hereto.

ARTICLE XII.

MISCELLANEOUS

Section 12.01 Notices, Etc .

(a) Notices Generally . All notices and other communications provided for hereunder shall be in writing and shall be mailed (certified mail, postage prepaid and return receipt requested), telecopied or delivered by hand, Federal Express or other reputable overnight courier, if to any Loan Party, at the following address:

if to a Borrower, to it at the following address:

 

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Funko, LLC

Funko Holdings LLC

1202 Shuksan Way

Everett, WA 98203

with a copy to:

c/o ACON Equity Management, LLC

1133 Connecticut Avenue, NW, Suite 700

Washington, DC 20036

Attention: Mr. Ken Brotman

Telecopy: 202.454.1101

Telephone: 202.454.1111

with a copy to:

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Gordon C. Wilson, Esq.

Telecopy: 202-637-5910

Telephone: 202-637-5711

if to the Administrative Agent, to it at the following address:

PNC Bank, National Association

1600 Market Street

Philadelphia, PA 19103

Attention: Brandon Schmoyer

Telephone: 215.585.6960

Telecopier: 215.585.4771

with a copy to:

PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, PA 15219

Attention:     Lisa Pierce

Telephone:   (412) 762-6442

Facsimile:    (412) 762-8672

with a copy to:

 

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Hahn & Hessen LLP

488 Madison Avenue

New York, NY 10022

Attention: Steven J. Seif, Esq.

Telephone: 212-478-7200

Telecopier: 212-478-7400

if to the Collateral Agent, to it at the following address:

Cerberus Business Finance, LLC

875 Third Avenue

New York, New York 10022

Attention: Gerald M. Daniello

Telephone: 212-284-7810

Telecopier: 212-284-7906

in each case, with a copy to:

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Attention: Eliot L. Relles, Esq.

Telephone: 212-756-2000

Telecopier: 212-593-5955

or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this Section 12.01. All such notices and other communications shall be effective, (i) if mailed (certified mail, postage prepaid and return receipt requested), when received or 3 days after deposited in the mails, whichever occurs first, (ii) if telecopied, when transmitted and confirmation received, or (iii) if delivered by hand, Federal Express or other reputable overnight courier, upon delivery, except that notices to any Agent or the L/C Issuer pursuant to ARTICLE II and ARTICLE III shall not be effective until received by such Agent or the L/C Issuer, as the case may be.

(b) Electronic Communications .

(i) Each Agent, Administrative Borrower and Administrative Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) in accordance with clause (b)(ii) below or otherwise pursuant to procedures approved by the Agents, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to ARTICLE II and ARTICLE III if such Lender or the L/C Issuer, as applicable, has notified the Agents that it is incapable of receiving notices under such Article by electronic communication.

 

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(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

Section 12.02 Amendments, Etc . (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (x) in the case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Agents and the Lenders or extending an existing Lien over additional property, by the Agents and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), (y) in the case of any other waiver or consent but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and (z) in the case of any other amendment but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall:

(i) increase any Commitment of any Lender, reduce the principal of, or interest on, the Loans or the Reimbursement Obligations payable to any Lender, reduce the amount of any fee payable for the account of any Lender, or postpone or extend any scheduled date fixed for any payment of principal of, or interest or fees on, the Loans or Letter of Credit Obligations payable to any Lender, in each case, without the written consent of such Lender;

(ii) [reserved];

(iii) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that is required for the Lenders or any of them to take any action hereunder without the written consent of each Lender;

(iv) amend the definition of “Required Lenders” or “Pro Rata Share” without the written consent of each Lender;

(v) release all or a substantial portion of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents), subordinate any Lien granted in favor of the Collateral Agent for the benefit of the Agents and the Lenders, or release any Borrower or any Guarantor, in each case, without the written consent of each Lender (except as otherwise provided in this Agreement and the other Loan Documents);

 

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(vi) amend, modify or waive Section 2.01(b)(i), Section 2.01(c), Section 2.05(c), Section 4.02, Section 4.03, Section 5.02 (it being understood, however, that this clause (vi) shall not impact the effectiveness of any waiver of a Default or Event of Default, including for purposes of Section 5.02), Section 10.08, Section 12.07(b) or this Section 12.02 of this Agreement without the written consent of each Lender;

(vii) amend the definition of “Bank Product Provider”, “Bank Product Obligations” (or any defined term used therein or any provision expressly relating to Bank Product Obligations), “Bank Product Reserve”, “Cash Collateralize” (or any provision hereof relating to the Cash Collateralization of Letter of Credit Obligations), “Excluded Hedge Liability” (or any defined term used therein or any provision expressly relating to Excluded Hedge Liabilities), “Letter of Credit Sublimit”, “Interest Rate Hedging Obligations” (or any provision expressly relating to Interest Rate Hedging Obligations), “Lender-Provided Hedge Agreement”, or “Permitted Discretion” (as used with respect to the Administrative Agent), in each case, without the written consent of the Required Revolving Loan Lenders, the Required Lenders; or

(viii) amend the definition of “Availability”, “Book Value”, “Borrowing Base” (or any defined term used therein), “Eligible Accounts Receivable”, “Eligible Domestic Accounts Receivable”, Eligible Foreign Accounts Receivable”, “Eligible Domestic In-Transit Inventory” (or any defined term used therein), “Eligible Foreign In-Transit Inventory” (or any defined term used therein), “Eligible Inventory”, “Eligible Special Inventory”, “Dilution”, “Dilution Reserves”, “Net Amount of Eligible Accounts Receivable”, “Permitted Special Inventory Amount” or “Reserves” (or any defined term for any particular reserve referenced therein)), in each case, without the written consent of the Required Revolving Loan Lenders and the Required Lenders.

Notwithstanding the foregoing, (A) no amendment, waiver or consent shall, unless in writing and signed by an Agent or the L/C Issuer, affect the rights or duties of such Agent or the L/C Issuer (but not in its capacity as a Lender) under this Agreement or the other Loan Documents, (B) any amendment, waiver or consent to any provision of this Agreement (including Sections 4.01 and 4.02) that permits any Loan Party, any Permitted Holder or any of their respective Affiliates to purchase Loans on a non-pro rata basis, become an eligible assignee pursuant to Section 12.07 and/or make offers to make optional prepayments on a non-pro rata basis shall require the prior written consent of the Required Lenders rather than the prior written consent of each Lender directly affected thereby and (C) the consent of the Borrowers shall not be required to change any order of priority set forth in Section 4.03. Notwithstanding anything to the contrary herein, no Defaulting Lender, Loan Party, Permitted Holder or any of their respective Affiliates that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents and any Loans held by such Person for purposes hereof shall be automatically deemed to be voted pro rata according to the Loans of all other Lenders in the aggregate (other than such Defaulting Lender, Loan Party, Permitted Holder or Affiliate).

 

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(b) If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or any Lender affected thereby, such consent, authorization or agreement is provided by the Required Lenders and a Lender (the “ Holdout Lender ”) fails to give its consent, authorization, agreement, then the Collateral Agent may, or at the request of the Administrative Borrower, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders (each, a “ Replacement Lender ”), and the Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 12.07(b). Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender shall remain obligated to make its Pro Rata Share of Loans.

Section 12.03 No Waiver; Remedies, Etc . No failure on the part of any Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agents and the Lenders under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any other Loan Document against such party or against any other Person.

Section 12.04 Expenses; Taxes; Attorneys’ Fees . The Borrowers will pay, not later than 15 days after receipt of a reasonably detailed invoice therefor, all reasonable and documented out-of-pocket costs and expenses incurred by or on behalf of each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender), regardless of whether the transactions contemplated hereby are consummated, including, without limitation, reasonable and documented out-of-pocket fees, costs, client charges and expenses of counsel for each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender, provided that the obligation to reimburse expenses of counsel shall be limited to one law firm for each Agent and, in the event of a conflict of interest, one additional law firm, together with one additional counsel in each applicable jurisdiction), accounting, due diligence, periodic field audits, physical counts, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, the rating of the Loans, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to: (a) the negotiation, preparation, execution, delivery, performance and administration of this Agreement and the other Loan Documents (including, without limitation, the preparation of any additional

 

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Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)), (b) any requested amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’ rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims against any Loan Party, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in, any court proceeding arising from or related to this Agreement or any other Loan Document, (f) the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral or other security, in connection with this Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking possession of or liquidation of, any Collateral or other security in connection with this Agreement or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any Collateral or other security in connection with this Agreement or any other Loan Document, (i) any attempt to collect from any Loan Party, (j) all liabilities and costs arising from or in connection with the past, present or future operations of any Loan Party involving any damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property, (k) any Environmental Liabilities and Costs incurred in connection with the investigation, removal, cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of any facility of any Loan Party, (l) any Environmental Liabilities and Costs incurred in connection with any Environmental Lien, (m) [intentionally deleted], or (n) the receipt by any Agent or any Lender of any advice from any accountants, auditors, appraisers, advisors or consultants with respect to any of the foregoing; provided , however , the foregoing to the contrary notwithstanding, that no Loan Party shall have any obligation to any Agent or any Lender under this Section  12.04 with respect to any Environmental Liabilities and Costs to the extent excluded from the obligations pursuant to Section 12.16(b) or with respect to any other obligations to the extent that such obligations (i) are caused by the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) arise from any dispute between or among any agent or any Lender, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among the Agents and Lenders and not involving the Loan Parties.   Without limitation of the foregoing or any other provision of any Loan Document: (x) the Borrowers agree to pay all stamp, document, transfer, recording or filing taxes or fees and similar impositions now or hereafter determined by any Agent or any Lender to be payable in connection with this Agreement or any other Loan Document, and the Borrowers agree to save each Agent and each Lender harmless from and against any and all present or future claims, liabilities or losses with respect to or resulting from any omission to pay or delay in paying any such taxes, fees or impositions, (y) the Borrowers agree to pay all broker fees that may become due in connection with the transactions contemplated by this Agreement and the other Loan Documents, and (z) if the Borrowers fail to perform any covenant or agreement contained herein or in any other Loan Document, any Agent may itself perform or cause performance of such covenant or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed not later than 15 days after receipt of a reasonably detailed invoice therefor. The obligations of the Borrowers under this Section 12.04 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

 

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Section 12.05 Right of Set-off . Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any and all other Indebtedness at any time owing by such Agent or such Lender to or for the credit or the account of any Loan Party against any and all Obligations of the Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made any demand hereunder or thereunder and although such Obligations may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 4.03 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agents and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Agent and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies (including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents of law or otherwise.

Section 12.06 Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 12.07 Assignments and Participations .

(a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided , however , that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.

(b) Each Lender may (x) with the written consent of the Collateral Agent assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and any Term Loan made by it and (y) with the written consent of each Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the

 

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Revolving Loans made by it; provided , however , that (i) such assignment shall require the prior consent of the Administrative Borrower (which consent shall not (1) be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default or (2) required in connection with an assignment to Fortress Credit Corp. or any of its Affiliates or Related Funds), (ii) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof), (iii) except as provided in the last sentence of this Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Borrower (and the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and (iv) no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender, a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent, the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Collateral Agent, the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and 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). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (a “ Related Party Assignment ”); provided , however , that (I) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(d) below.

 

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(c) By executing and delivering an Assignment and Acceptance, the assigning Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the 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 any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.

(d) The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “ Register ”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “ Registered Loans ”) and Letter of Credit Obligations owing to each Lender from time to time. Subject to the last sentence of this Section 12.07(d), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (the “ Related Party Register ”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

 

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(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent, the Administrative Borrower or the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.

(f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.

(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “ Participant Register ”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).

(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided , that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the

 

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Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of 0, Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that, at the time such participant is claiming benefits pursuant to Section 2.09, such participant shall comply all obligations under Section 2.09 as if it was a Lender thereunder.

(j) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a ” Securitization ”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.

Section 12.08 Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or electronic mail also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis .

Section 12.09 GOVERNING LAW . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE . (a) EACH OF THE LOAN PARTIES HERETO AGREE THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT

 

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COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.

(b) EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.01. SERVICE MAY BE MADE ON THE LOAN PARTIES, IN ANY SUCH ACTION OR PROCEEDING, BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWERS AT THEIR RESPECTIVE ADDRESSES FOR NOTICES AS SET FORTH IN SECTION 12.01, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.

(c) EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

Section 12.11 WAIVER OF JURY TRIAL, ETC . EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.

 

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Section 12.12 [Res erved ].

Section 12.13 No Party Deemed Drafter . Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter of this Agreement.

Section 12.14 Reinstatement; Certain Payments . If any claim is ever made upon any Agent, any Lender or the L/C Issuer for repayment or recovery of any amount or amounts received by such Agent, such Lender or the L/C Issuer in payment or on account of any of the Obligations, such Agent, such Lender or the L/C Issuer shall give prompt notice of such claim to each other Agent and Lender and the Administrative Borrower, and if such Agent, such Lender or the L/C Issuer repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such Agent, such Lender or the L/C Issuer or any of its property, or (ii) any good faith settlement or compromise of any such claim effected by such Agent, such Lender or the L/C Issuer with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree, order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable to such Agent, such Lender or the L/C Issuer hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Agent, such Lender or the L/C Issuer.

Section 12.15 [ Intentionally Omitted ].

Section 12.16 Indemnification; Limitation of Liability for Certain Damages .

(a) General Indemnity for Obligations . In addition to each Loan Party’s other Obligations under this Agreement, each Loan Party agrees to, jointly and severally, defend, protect, indemnify and hold harmless each Agent and each Lender and each of their Affiliates and all of their respective officers, directors, employees, attorneys, consultants and agents (collectively called the “ Indemnitees ”) from and against any and all losses, damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses, provided that the obligation to reimburse expenses of counsel shall be limited as provided in Section 12.04 incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following : (i)  the negotiation, preparation, execution or performance or enforcement of this Agreement, any other Loan Document or of any other document executed in connection with the transactions contemplated by this Agreement, (ii) transactions contemplated by this Agreement, (iii) any Agent’s or any Lender’s furnishing of funds to the Borrowers for the account of the Borrowers under this Agreement or the other Loan Documents, including, without limitation, the management of any such Loans, (iv) any matter relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (collectively, the “ Indemnified Matters ”); provided , however , that the Loan Parties shall not have any obligation to any Indemnitee under this subsection (a) for any Indemnified Matter (i) caused by the gross negligence, bad faith or willful

 

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misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) to the extent arising from any dispute between or among any Indemnitees, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among Indemnities not involving the Loan Parties .

(b) Environmental Indemnity for Obligations . Each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including without limitation, reasonable legal fees and expenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or relating to any Release of Hazardous Materials by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which (x) is caused by the gross negligence, bad faith, or willful misconduct of such Indemnitee, (y) arose from Hazardous Materials brought on to any real property after any Indemnitee has taken title to or possession of such property, whether by foreclosure, deed-in-lieu thereof or otherwise, as determined by a final judgment of a court of competent jurisdiction, or (z) is attributable solely to acts of any of the Agents.

(c) The indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees, respectively are chargeable against the Loan Account. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.16 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. The indemnities set forth in this Section 12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents. To the extent permitted by applicable law, no Loan Party 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, any other Loan Document, any other agreement or instrument contemplated hereby or thereby, any Loan or the use of the proceeds thereof.

 

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(d) The indemnities and waivers set forth in this Section 12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

Section 12.17 Administrative Borrowers . Each Borrower hereby irrevocably appoints Funko as the agent and attorney-in-fact for the Borrowers (the “ Administrative Borrower ”), which appointment shall remain in full force and effect unless and until the Agents shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. It is understood that the handling of the Loan Account and Collateral of the Borrowers, in a combined fashion, as more fully set forth herein and subject to the limitations set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the Lenders shall incur liability to the Borrowers as a result hereof. Each of the Borrowers expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To induce the Agents and the Lenders to do so, and in consideration thereof, each of the Borrowers, hereby jointly and severally agrees to indemnify the Indemnitees and hold the Indemnitees harmless against any and all liability, expense, loss or claim of damage or injury, made against such Indemnitee by any of the Borrowers or by any third party whosoever, arising from or incurred by reason of (a) the handling of the Loan Account and Collateral of the Borrowers as herein provided, (b) the Agents and the Lenders relying on any instructions of the Administrative Borrower or the Administrative Borrowers, or (c) any other action taken by any Agent or any Lender hereunder or under the other Loan Documents.

Section 12.18 Records . The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, including, without limitation, the Closing Fee, Loan Servicing Fee, Unused Line Fee, the Letter of Credit Fee and the Applicable Prepayment Premium, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding absent manifest error.

Section 12.19 Binding Effect . This Agreement shall become effective when it shall have been executed by each Loan Party, each Agent and each Lender and when the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived in writing by the Agents, and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall be governed by Section 12.07 hereof.

Section 12.20 Interest . It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of

 

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America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such Lender, as applicable, to the Borrowers); and (ii) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such Lender to the Borrowers). All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until Payment in Full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 12.20 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 12.20.

For purposes of this Section 12.20 the term “applicable law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrowers, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.

 

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The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration.

Section 12.21 Confidentiality . Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) to keep confidential any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the other Loan Documents (and which at the time is not, and does not thereafter become, publicly available or available to such Person from another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, counsel, advisors and representatives (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 in accordance with this Section 12.21); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant) so long as such assignee or participant (or prospective assignee or participant) first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.21; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority; (v) to examiners, auditors or accountants; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (viii) to its lenders or financing providers; (ix) in connection with public filings, or (x) with the consent of the Administrative Borrower.

Section 12.22 Public Disclosure . Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue any press release or other public disclosure using the name of an Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate will consult with such Agent or such Lender before issuing such press release or other public disclosure). Each Agent and each Lender agrees that neither it nor any of its Affiliates will now or in the future advertise the closing of the transactions contemplated by this Agreement, or otherwise make appropriate announcements of the financial arrangements entered into among the parties hereto, including, without limitation, on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation without the prior written consent of the Administrative Borrower, except to the extent that such Agent or Lender is required to do so under applicable law (in which event, such Agent or Lender or such Affiliate will consult with the Administrative Borrower before taking such action).

Section 12.23 Integration . This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.

 

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Section 12.24 USA PATRIOT Act . Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the entities composing the Borrowers, which information includes the name and address of each such entity and other information that will allow such Lender to identify the entities composing the Borrowers in accordance with the USA PATRIOT Act. Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments and documents as any Lender may reasonably require from time to time in order to enable such Lender to comply with the USA PATRIOT Act.

Section 12.25 Keepwell . Each Loan Party, if it is a Qualified ECP Loan Party, then jointly and severally, together with each other Qualified ECP Loan Party, hereby absolutely unconditionally and irrevocably (a) guarantees the prompt payment and performance of all Swap Obligations owing by each Non-Qualifying Party (it being understood and agreed that this guarantee is a guaranty of payment and not of collection), and (b) undertakes to provide such funds or other support as may be needed from time to time by any Non-Qualifying Party to honor all of such Non-Qualifying Party’s obligations under this Agreement or any other Loan Document in respect of Swap Obligations (provided, however, that each Qualified ECP Loan Party shall only be liable under this Section 12.25 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.25, or otherwise under this Agreement or any other Loan Document, voidable under applicable law, including applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Loan Party under this Section 12.25 shall remain in full force and effect until payment in full of the Obligations and termination of this Agreement and the other Loan Documents. Each Qualified ECP Loan Party intends that this Section 12.25 constitute, and this Section 12.25 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of each other Borrower and Guarantor for all purposes of Section 1a(18(A)(v)(II) of the CEA .

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS :
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary
FUNKO HOLDINGS LLC
By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary
FUNKO, LLC
By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary


COLLATERAL AGENT :
CERBERUS BUSINESS FINANCE, LLC
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: President


ADMINISTRATIVE AGENT AND LENDER :
PNC BANK, NATIONAL ASSOCIATION
By:  

/s/ Keith Moellering

  Name: Keith Moellering
  Title: Senior Vice President


LENDERS :
CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.
By:   Cerberus NJ Credit Opportunities GP, LLC,
  its General Partner
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director
CERBERUS ASRS HOLDINGS LLC
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President
CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus ICQ Levered Opportunities GP, LLC,
  its General Partner
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director
CERBERUS KRS LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus KRS Levered Opportunities GP, LLC,
  its General Partner
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director


CERBERUS PSERS LEVERED LOAN OPPORTUNITIES FUND, L.P.

By:       Cerberus PSERS Levered Opportunities GP, LLC, its General Partner

By:        /s/ Daniel E. Wolf                                    

            Name: Daniel E. Wolf
            Title:    Senior Managing Director


SCHEDULE 1.01(A)

LENDERS AND LENDERS’ COMMITMENTS

 

Lender

   Revolving Loan
Commitment
     Term Loan
Commitment
     Total Commitment  

PNC Bank, National Association

   $ 50,000,000.00      $ 0      $ 50,000,000.00  

Cerberus NJ Credit Opportunities Fund, L.P.

   $ 0      $ 26,332,737.31      $ 26,332,737.31  

Cerberus ASRS Holdings LLC

   $ 0      $ 80,283,112.92      $ 80,283,112.92  

Cerberus ICQ Levered Loan Opportunities Fund, L.P.

   $ 0      $ 26,072,317.30      $ 26,072,317.30  

Cerberus KRS Levered Loan Opportunities Fund, L.P.

   $ 0      $ 7,969,296.85      $ 7,969,296.85  

Cerberus PSERS Levered Loan Opportunities Fund, L.P.

   $ 0      $ 34,342,535.62      $ 34,342,535.62  
  

 

 

    

 

 

    

 

 

 

Totals

   $ 50,000,000.00      $ 175,000,000.00      $ 225,000,000.00  
  

 

 

    

 

 

    

 

 

 


SCHEDULE 1.01(B)

SECURITY DOCUMENTS

1. Security Agreement

2. Trademark Security Agreement


EXHIBIT A

FORM OF JOINDER AGREEMENT

THIS JOINDER AGREEMENT, dated as of                      (this “ Agreement ”), to the Financing Agreement (as defined below) is entered into by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “ Borrower ” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “ Borrower ” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “ Guarantor ” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), [NAME OF ADDITIONAL [BORROWER][GUARANTOR]], a                     (the “ Additional [Borrower][Guarantor] ”) and Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (as defined below) (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”).

WHEREAS, reference is made to that certain Financing Agreement, dated as of October 30, 2015 (such agreement, as amended, restated, supplemented or otherwise modified from time to time, being hereinafter referred to as the “ Financing Agreement ”), by and among the Borrowers [(other than the Additional Borrower)], the Guarantors [(other than the Additional Guarantor)], the lenders from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”), the Collateral Agent and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”)), pursuant to which the Lenders have agreed to make loans to the Borrowers (each a “ Loan ” and collectively the “Loans”) in an aggregate principal amount not to exceed the Total Commitment (as defined under the Financing Agreement);

WHEREAS, the Borrowers’ obligation to repay the Loans and all other Obligations are guaranteed, jointly and severally, by the Guarantors;

WHEREAS, pursuant to Section 7.01(b) of the Financing Agreement, the Additional [Borrower][Guarantor] is required to become a [Borrower][Guarantor] by, among other things, executing and delivering this Agreement to the Collateral Agent; and

WHEREAS, the Additional [Borrower][Guarantor] has determined that the execution, delivery and performance of this Agreement directly benefit, and are within the corporate purposes and in the best interests of, the Additional [Borrower][Guarantor].

NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:


SECTION 1. Definitions . Reference is hereby made to the Financing Agreement for a statement of the terms thereof. All capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Financing Agreement.

SECTION 2. Joinder of Additional [Borrower][Guarantor] .

(a) Pursuant to Section 7.01(b) of the Financing Agreement, by its execution of this Agreement, the Additional [Borrower][Guarantor] hereby agrees that, from and after the effective date of this Agreement, the Additional [Borrower][Guarantor] shall be a party to the Financing Agreement and shall be bound, as a [Borrower][Guarantor], by all the provisions thereof and shall comply with and be subject to all of the terms, conditions, covenants, agreements and obligations set forth therein and applicable to the [Borrowers][Guarantors], [including, without limitation, the guaranty of the Obligations made by the Guarantors, jointly and severally with the other Loan Parties, in favor of the Agents and the Lenders pursuant to Article XI of the Financing Agreement]. The Additional [Borrower][Guarantor] hereby agrees that from and after the effective date of this Agreement each reference to a [“Borrower”][“Guarantor”] or a “Loan Party” and each reference to the [“Borrowers”][“Guarantors”] or the “Loan Parties” in the Financing Agreement shall include the Additional [Borrower][Guarantor]. The Additional [Borrower][Guarantor] acknowledges that it has received a copy of the Financing Agreement and each other Loan Document and that it has read and understands the terms thereof.

(b) Attached hereto are supplements to each Schedule to the Financing Agreement revised to include all information required to be provided therein with respect to, and only with respect to, the Additional [Borrower][Guarantor]. The Schedules to the Financing Agreement shall, without further action, be amended to include the information contained in each such supplement.

SECTION 3. Effectiveness . This Agreement shall become effective upon its execution by the Additional [Borrower][Guarantor], each Borrower, each Guarantor and the Collateral Agent and receipt by the Collateral Agent of the following, in each case in form and substance reasonably satisfactory to the Collateral Agent:

(i) original counterparts (as defined in Section 5(e) below) to this Agreement, duly executed by each Borrower, each Guarantor, the Additional [Borrower][Guarantor] and the Collateral Agent, together with the Schedules referred to in Section 2(b) hereof;

(ii) a Supplement to the Security Agreement, substantially in the form of Exhibit C to the Security Agreement (the “ Security Agreement Supplement ”) or a supplement or other comparable document to the applicable Security Documents duly executed by the Additional [Borrower][Guarantor], and any instruments of assignment or other documents required to be delivered to the Collateral Agent pursuant to the terms thereof ;

 


(iii) a Pledge Amendment to the Security Agreement to which the parent company of the Additional [Borrower][Guarantor] is a party, in substantially the form of Exhibit A thereto or other comparable document to the applicable Security Documents, duly executed by such parent company and providing for all Equity Interest of the Additional [Borrower][Guarantor] to be pledged to the Collateral Agent pursuant to the terms thereof, to the extent required pursuant to the Financing Agreement and the Security Documents;

(iv) (A) certificates, if any, representing 100% of the issued and outstanding Equity Interests of the Additional [Borrower][Guarantor] and each Subsidiary of the Additional [Borrower][Guarantor], to the extent required to be delivered pursuant to the Financing Agreement and the Security Documents and (B) all original promissory notes of such Additional [Borrower][Guarantor], if any, in each case that are required to be delivered under the Loan Documents, in each case, accompanied by instruments of assignment and transfer in such form as the Collateral Agent may reasonably request;

(v) to the extent required under the Financing Agreement, (A) a Mortgage, in form and substance reasonably satisfactory to the Collateral Agent (the “Additional Mortgage”), duly executed by the Additional [Borrower][Guarantor], with respect to the real property owned by the Additional [Borrower][Guarantor], (B) a Title Insurance Policy covering such real property, (C) a current ALTA survey thereof and a surveyor’s certificate, each in form and substance reasonably satisfactory to the Collateral Agent, together with such other agreements, instruments and documents as the Collateral Agent may reasonably require whether comparable to the documents required under Section 7.01(o) of the Financing Agreement or otherwise;

(vi) (A) appropriate financing statements on Form UCC-1 or the equivalent documents in any applicable jurisdiction duly filed in such office or offices as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement Supplement, any Mortgage or other comparable document to the applicable Security Documents and (B) evidence reasonably satisfactory to the Collateral Agent of the filing of such UCC-1 financing statements or equivalent documents in any applicable jurisdiction;

(vii) If reasonably requested by the Collateral Agent and to the extent permitted under the Financing Agreement, the Security Agreement or other Security Documents, a favorable written opinion of counsel to the Loan Parties as to such matters as the Collateral Agent may reasonably request; and

(viii) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of (subject to Permitted Liens) or otherwise protect any Lien purported to be covered by any such Security Agreement Supplement, Additional Mortgage, or other comparable document to the applicable Security Documents or otherwise to effect the intent that the Additional [Borrower][Guarantor] shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets (other than Excluded Property (as defined in the Security Agreement)) of such Subsidiary shall become Collateral for the Obligations free and clear of all Liens other than Permitted Liens.


SECTION 4. Notices, Etc . All notices and other communications provided for hereunder shall be in writing and shall be mailed (by certified mail, postage prepaid and return receipt requested), telecopied or delivered by hand, Federal Express or other reputable overnight courier, if to the Additional [Borrower][Guarantor], to it at its address set forth below its signature to this Agreement, and if to any Borrower, any Guarantor, any Lender or any Agent, to it at its address specified in the Financing Agreement or Joinder Agreement (as applicable); or as to any such Person at such other address as shall be designated by such Person in a written notice to such other Person complying as to delivery with the terms of this Section 4. All such notices and other communications shall be effective as specified in Section 12.01 of the Financing Agreement.

SECTION 5. General Provisions . (a) The Administrative Borrower and the Additional [Borrower][Guarantor], hereby confirms that each representation and warranty made by it under the Loan Documents is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof (including the representations and warranties set forth in the final sentence of Section 6.01(g)(i)) of the Financing Agreement, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and that no Default or Event of Default has occurred or is continuing under the Financing Agreement. The Administrative Borrower and the Additional [Borrower][Guarantor], hereby represents and warrants that as of the date hereof there are no claims or offsets against or defenses or counterclaims to their respective obligations under the Financing Agreement or any other Loan Document.

(b) Except as supplemented hereby, the Financing Agreement and each other Loan Document shall continue to be, and shall remain, in full force and effect. This Agreement shall not be deemed (i) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Financing Agreement or any other Loan Document or (ii) to prejudice any right or rights which the Agents or the Lenders may now have or may have in the future under or in connection with the Financing Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or otherwise modified from time to time.

(c) The Additional [Borrower][Guarantor] hereby expressly (i) authorizes the Collateral Agent to file appropriate financing statements on or continuation statements, and amendments thereto, (including without limitation, any such financing statements that indicate the Collateral as “all assets” or words of similar import) or the equivalent, if any, of the financing


statements in the other relevant jurisdictions in such office or offices as may be necessary to perfect the Liens to be created by the Security Agreement Supplement and each of the other Loan Documents and (ii) ratifies such authorization to the extent that the Collateral Agent has filed any such financing or continuation statements or amendments thereto, prior to the date hereof. A photocopy or other reproduction of the Security Agreement Supplement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.

(d) Each Borrower agrees to pay or reimburse the Agents for all of their reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement, including, without limitation, the reasonable and documented out-of-pocket fees and disbursements of one outside counsel and one local counsel in each relevant jurisdiction, in the manner and to the extent set forth in the Financing Agreement.

(e) This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telecopier or electronic transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement.

(f) Section headings in this Agreement are included herein for the convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

(g) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ADDITIONAL [BORROWER][GUARANTOR] AND EACH OTHER LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ADDITIONAL [BORROWER][GUARANTOR], EACH OTHER LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS FOR NOTICES AS SET FORTH IN THE FINANCING AGREEMENT AND TO THE SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. THE ADDITIONAL [BORROWER][GUARANTOR], EACH OTHER LOAN PARTY, EACH AGENT AND EACH LENDER AGREE 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 HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE


PROCEED AGAINST THE ADDITIONAL [BORROWER][GUARANTOR] OR ANY OTHER LOAN PARTY IN ANY OTHER JURISDICTION. THE ADDITIONAL [BORROWER][GUARANTOR], EACH OTHER LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.

(h) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

(i) THE ADDITIONAL [BORROWER][GUARANTOR], EACH OTHER LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

(j) This Agreement, together with the Financing Agreement and the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and thereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.

[ Remainder of Page Intentionally Left Blank ]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS:

FUNKO ACQUISITION HOLDINGS, L.L.C.

By:

   
 

Name:

 

Title:

FUNKO HOLDINGS LLC

By:

   
 

Name:

 

Title:

FUNKO, LLC

By:

   
 

Name:

 

Title:


COLLATERAL AGENT :

CERBERUS BUSINESS FINANCE, LLC,

By:

   
 

Name:

 

Title:


ADDITIONAL [BORROWER][GUARANTOR]:

[                                         ]

By:

   
 

Name:

 

Title:

Address:

 
 
 


EXHIBIT B

FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT

This ASSIGNMENT AND ACCEPTANCE AGREEMENT (“ Assignment Agreement ”) is entered into as of                , 201     between                     (“ Assignor ”) and                      (“ Assignee ”). Reference is made to that certain agreement described in Item 2 of Annex I annexed hereto (as amended, restated, modified or otherwise supplemented from time to time, the “ Financing Agreement ”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Financing Agreement.

1. In accordance with the terms and conditions of Section 12.07 of the Financing Agreement, the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to the Assignor’s rights and obligations under the Loan Documents as of the date hereof with respect to the Obligations owing to the Assignor, and the Assignor’s portion of the Loans as specified on Annex I .

2. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim and (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby; (b) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any other instrument or document furnished pursuant thereto; and (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under the Loan Documents or any other instrument or document furnished pursuant thereto.

3. The Assignee (a) confirms that it has received copies of the Financing Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement; (b) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, the Assignor, or any other Lender, based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; (c) confirms that it is eligible as an assignee under the terms of the Financing Agreement; (d) appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as the Administrative Agent or the Collateral Agent (as the case may be) on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent or the Collateral Agent (as the case may be) by the terms thereof, together with such powers as are reasonably incidental thereto; (e) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (f) attaches the forms prescribed


by the Internal Revenue Service of the United States certifying as to the Assignee’s status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to the Assignee under the Financing Agreement or such other documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty.

4. Following the execution of this Assignment Agreement by the Assignor and the Assignee, it will be delivered by the Assignor to the Collateral Agent for recording by the Collateral Agent. The effective date of this Assignment Agreement (the “ Settlement Date ”) shall be the latest of (a) the date of the execution hereof by the Assignor and the Assignee, (b) the date this Assignment Agreement has been accepted by the Collateral Agent and recorded in the Register, (c) the date of receipt by the Collateral Agent of a processing and recordation fee in the amount of $5,000, (d) the settlement date specified on Annex I , and (e) the receipt by Assignor of the Purchase Price specified in Annex I .    

5. As of the Settlement Date (a) the Assignee shall be a party to the Financing Agreement and, to the extent of the interest assigned pursuant to this Assignment Agreement, have the rights and obligations of a Lender thereunder and under the other Loan Documents, and (b) the Assignor shall, to the extent of the interest assigned pursuant to this Assignment Agreement, relinquish its rights and be released from its obligations under the Financing Agreement and the other Loan Documents.

6. Upon recording by the Collateral Agent, from and after the Settlement Date, the Administrative Agent shall make all payments under the Financing Agreement and the other Loan Documents in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees (if applicable) with respect thereto) to the Assignee. The Assignor and the Assignee shall make all appropriate adjustments in payments under the Financing Agreement and the other Loan Documents for periods prior to the Settlement Date directly between themselves on the Settlement Date.

7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

8. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED UPON OR ARISING OUT OF THIS ASSIGNMENT AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

9. This Assignment Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Assignment Agreement by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart.


[Remainder of page left intentionally blank.]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized, as of the date first above written.

 

[ASSIGNOR]

By:

   
 

Name:

 

Title:

 

Date:

[ASSIGNEE]

By:

   
 

Name:

 

Title:

 

Date:


ACCEPTED AND CONSENTED TO this     day of            , 201    
CERBERUS BUSINESS FINANCE, LLC, as Collateral Agent
By:  

 

  Name:
  Title:


ACKNOWLEDGED BY AND CONSENTED TO this          day of        , 201    

[FUNKO, LLC, as Administrative Borrower

 

By:  

 

  Name:
  Title:] 1
[PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent
By:  

 

  Name:
  Title:] 2

 

1   [Consent required if Assignment and Acceptance made to an Assignee that is not (i) an Affiliate of the Assignor, (ii) a Related fund of the Assignor or (ii) Fortress Credit Corp. or any of its Affiliates or Related Funds]
2   If required by the Financing Agreement


ANNEX FOR ASSIGNMENT AND ACCEPTANCE

ANNEX I

 

1. Borrowers: Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of Parent listed as a “Borrower” on the signature pages to the Financing Agreement (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a Borrower thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”)

 

2. Name and Date of Financing Agreement:    

Financing Agreement, dated as of October 30, 2015 (as the same may be amended, restated, supplemented or otherwise modified from time to time, including any replacement agreement therefor, the “ Financing Agreement ”), by and among the Borrowers, each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

 

3.   

Date of Assignment Agreement:

                                
4.   

Amount of Revolving Credit Commitment Assigned:

   $                       
7.   

Amount of Term Loan Commitment Assigned:

   $                       
8.   

Amount of Term Loan Assigned:

   $                       
11.   

Amount of Revolving Loan Assigned:

   $                       
12.   

Purchase Price:

   $                       
13.   

Settlement Date:

                                


14. Notice and Payment Instructions, etc.      
Assignee:       Assignor:

 

     

 

 

     

 

 

     

 

Attn:                                                                                     Attn:                                                                        
Fax No.:                                                                              Fax No.:                                                                 
Bank Name:       Bank Name:
ABA Number:       ABA Number:
Account Name:       Account Name:
Account Number:       Account Number:
Sub-Account Name:       Sub-Account Name:
Sub-Account Number:       Sub-Account Number:
Reference:       Reference:

Attn:

      Attn:


EXHIBIT C

FORM OF NOTICE OF BORROWING

[FUNKO ACQUISITION HOLDINGS, L.L.C.]

[FUNKO, LLC] 1

Date: [                ], 201    

PNC Bank, National Association

as Administrative Agent for the Lenders

party to the Financing Agreement referred to below

1600 Market Street

Mail Stop: F2-F070-31-2

Philadelphia, PA 19103

Attention: Patrick M. Cornell

Telephone: 215.585.4780

Telecopier: 215.525.4771

PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, PA 15219

Attention: Lisa Pierce

Telephone: (412) 762-6442

Facsimile: (412) 762-8672

Ladies and Gentlemen:

The undersigned, [Funko Acquisition Holdings, L.L.C., a Delaware limited liability company][Funko, LLC, a Washington limited liability company (the “ Administrative Borrower ”)] 2 , refers to the Financing Agreement, dated as of October 30, 2015 (as the same may be amended, restated, supplemented or otherwise modified from time to time, including any replacement agreement therefor, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower and immediately upon consummation of the Funko Acquisition (as therein defined), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “ Borrower ” thereunder, each a “ Borrower ” and collectively,

 

1   Funko Acquisition Holdings, L.L.C. to be the initial Borrower. Funko, LLC to be the Administrative Borrower immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement).
2   See FN 1.


the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”) and hereby gives you notice pursuant to Section 2.02 of the Financing Agreement that the undersigned hereby requests a Loan under the Financing Agreement, and in that connection sets forth below the information relating to such loan (the “ Proposed Loan ”) as required by Section 2.02(a) of the Financing Agreement. All capitalized terms used but not otherwise defined herein have the same meanings ascribed to them in the Financing Agreement.

 

  (i) The aggregate principal amount of the Proposed Loan is $[                    ].

 

  (ii) The Proposed Loan is a [Revolving Loan][Term Loan ] 3 .

 

  (iii) The Proposed Loan is a [Reference Rate Loan] [a LIBOR Rate Loan] [and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto is [1, 2 or 3 months].

 

  (iv) The borrowing date of the Proposed Loan is                     , 201   4 .

 

  (v) The proceeds of the Proposed Loan should be made available to the undersigned by wire transferring such proceeds in accordance with the payment instructions set forth on Annex I hereto.

[SIGNATURE PAGE FOLLOWS]

 

3   Each LIBOR Loan shall be made in a minimum amount of $1,000,000 and shall be in integral multiples of $250,000 in excess thereof. No more than 7 LIBOR Rate Loans denominated in Dollars made to the Borrowers shall be in effect at any given time.
4   The proposed borrowing date must be a Business Day and with respect to the Term Loan, must be the Effective Date.


The undersigned hereby certifies that (i) the representations and warranties contained in Article VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the date of such Loan are true and correct in all material respects [(except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof (including the representations and warranties set forth in the final sentence of Section 6.01(g)(i)),] 5 on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), (ii) at the time of and after giving effect to the making of such Loan and the application of the proceeds thereof, no Default or Event of Default has occurred and is continuing or would result from the making of the Loan to be made on such date and (iii) the conditions set forth in Section[s 5.01 and] 6 5.02 of the Financing Agreement have been satisfied as of the date of such request.

 

Very truly yours,
[FUNKO ACQUISITION HOLDINGS, L.L.C.] [FUNKO, LLC] 7
By:  

 

  Name:
  Title:

 

5   Bracketed language to be removed for Notice of Borrowing delivered on the Effective Date.
6   Bracketed language only to be included for Notice of Borrowing delivered on the Effective Date.
7   See FN 1.


ANNEX I

PAYMENT INSTRUCTIONS


EXHIBIT D

FORM OF LIBOR NOTICE

[FUNKO ACQUISITION HOLDINGS, L.L.C.]

[FUNKO, LLC] 1

                    , 20    

PNC Bank, National Association

as Administrative Agent for the Lenders

party to the Financing Agreement referred to below

1600 Market Street

Mail Stop: F2-F070-31-2

Philadelphia, PA 19103

Attention: Patrick M. Cornell

Telephone: 215. 585.4780

Telecopier: 215.525.4771

PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, PA 15219

Attention: Lisa Pierce

Telephone: (412) 762-6442

Facsimile: (412) 762-8672

Ladies and Gentlemen:

Reference is made to the Financing Agreement, dated as of October 30, 2015 (as the same may be further amended, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower and immediately upon consummation of the Funko Acquisition (as therein defined), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that

 

1   Funko Acquisition Holdings, L.L.C. is the initial Borrower on the Effective Date. Funko, LLC is the Administrative Borrower thereafter.


executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”). All capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Financing Agreement.

This LIBOR Notice represents the request of the Administrative Borrower to elect to [convert] [continue] a portion of the [Revolving Loan][Term Loan] in the amount of $                 as a LIBOR Rate Loan (the “ Requested Loan ”)[, and is a written confirmation of the telephonic notice of such election given to the Administrative Agent].

[The portion of the [Revolving Loan][Term Loan] being so [continued] [converted] is [currently a [Reference Rate Loan] [a LIBOR Rate Loan with an Interest Period of [1, 2 or 3] month[s] expiring on                     ].]

The Requested Loan will have an Interest Period of [1, 2 or 3] month(s) commencing on                     .

This LIBOR Notice further confirms the Borrowers’ acceptance of the Administrative Agent’s determination of the LIBOR Rate, which has been determined by the Administrative Agent in accordance with the terms of the Financing Agreement.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

- 2 -


Very truly yours,

[FUNKO ACQUISITION HOLDINGS, L.L.C.]

[FUNKO, LLC] 2

By:

   

Name:

   

Title:

   

 

2   See FN 1.

 

- 3 -


EXHIBIT E

FORM OF BORROWING BASE CERTIFICATE

Date:                         ,             

This Borrowing Base Certificate (this “ Certificate ”) is given by the Administrative Borrower pursuant to the Financing Agreement, dated as of October 30, 2015 (such agreement, as amended, restated, supplemented or otherwise modified from time to time, being hereinafter referred to as the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower and immediately upon consummation of the Funko Acquisition (as therein defined), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “ Borrower ” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”). All capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Financing Agreement.

The individual executing this Certificate on behalf of the Administrative Borrower is an Authorized Officer and, as such, is duly authorized to execute and deliver this Certificate on behalf of the Administrative Borrower. By executing this Certificate such Authorized Officer, in such capacity and not in his individual capacity, hereby certifies to the Agents and the Lenders that:

 

  (a) Attached is a schedule of the Borrowing Base (Exhibit A) as of the above date and the calculations made with respect thereto;

 

  (b) based on such schedule, the Borrowing Base as of the above date is:

$                              

 

1


IN WITNESS WHEREOF, the Administrative Borrower has caused this Certificate to be executed by one of its Authorized Officers this            day of                     , 20        .

 

FUNKO, LLC,

as Administrative Borrower

By:

   
 

Name:

 

Title:

 

2


EXHIBIT A

TO

BORROWING BASE CERTIFICATE

 

3


LOGO

EXHIBIT F FORM OF LETTER OF CREDIT APPLICATION Application forIrrevocable PNC Bank, National Association Standby Letterof Credit 500 First Avenue, Third Floor P7-PFSC-03-T Pittsburgh, PA 15219 The undersigned hereby applies for the establishment of an Irrevocable Standby Letter of Credit (or, if the undersigned’s bank is not the Issuing Bank, then application is hereby made to the undersigned’s bank identified below for the establishment of such credit by the Issuing Bank as its correspondent bank), for the account of the undersigned, as set forth below. This Application is delivered under, and such Credit when issued will be subject to, the undersigned’s Reimbursement Agreement for Standby Letters of Credit delivered to PNC Bank, National Association (“PNC Bank”), or such other agreement with PNC Bank for the issuance and reimbursement of letters of credit, as the case may be. PNC Bank hereby notifies the undersigned that pursuant to the requirements of the USA Patriot Act (Title III of Pub.L. 107-56 (the “Act”), it is required to obtain, verify and record information that identifies the undersigned, which information includes the name and address of the undersigned and other information that will allow PNC Bank to identify the undersigned in accordance with the Act. PNC Bank complies with all US laws and federal regulations and will take all actions in connection with this Application as may be necessary to ensure compliance. Letter of Credit to be established as follows: 1. Date of Application 2. L/C No. (Bank Use Only) 3. Applicant: (complete name and address as it is to appear in letter of credit) 4. Amount: 5. Currency: US Dollar Other (Specify) 6 a. Expiration Date: _____One Year From Issuance Date Other (Specify) b. Place of Expiration: Pittsburgh, PA Other 7. Letter of credit to be automatically extendable with at least days notice for non-extension by the bank. 8. Beneficiary of letter of credit or guarantee to be issued by foreign bank: 9. Transmit letter of credit by (check one) (complete name and address) Courier SWIFT Other (Specify) Attention: Telephone: Fax: Choose one of the following (unless letter of credit is to support a guarantee issued by another bank –– see Field 16 below) 10. Beneficiary’s statement purportedly signed by one of its authorized officers or representatives reading as follows: (Indicate within the quotation marks the exact wording to appear on the statement to be presented.) “ “ Other Documents (if any): 11. The wording of the credit should be similar to the attached specimen/addendum forming a part hereof. Please initial all pages 12. Clean credit: available by sight draft only: no written certification of default or beneficiary’s entitlement to draw on the letter of credit required.


 

LOGO

13. Special Instructions: 14: Advising Bank: (Specify if known) Request Advising Bank to add their confirmation Advising Bank’s charges are for the account of: Beneficiary Account Party SWIFT Address 15. If the Beneficiary is located outside the United States, the following is requested. In order to comply with United States Department of the Treasury——Office of Foreign Assets Control regulations, and other regulations as applicable, please provide a brief description of product/services. Export License Number (Copy attached), or We certify that an Export License is not required. 16. If the beneficiary designated above is to be the beneficiary of a guarantee issued by a foreign bank, complete the following: Name and location of bank issuing guarantee or bond (Guarantor) The letter of credit will be sent by SWIFT to the Guarantor Bank. (If you do not designate a bank, a PNC Bank correspondent will be used.) The Guarantor Bank will be the beneficiary of the PNC Bank letter of credit and issuer of the guarantee/bond The letter of credit in favor of the Guarantor Bank will be available by authenticated SWIFT message certifying a draw on the Guarantee/Bond. Expiry date of guarantee or bond: (Must be 15-30 days prior to the Expiry date of letter of credit) Choose one of the following: A. The wording of the guarantee should be similar to the attached specimen/addendum forming a part hereof. B. Instruct guarantor bank to issue guarantee in accordance with their standard format. C. Please provide wording for any statement or other documents required to draw on guarantee. This will be subject to approval of Guarantor. Please provide any instructions for delivery of guarantee/bond. This letter of credit will be (i) issued by PNC Bank or any affiliate designated by PNC Bank, unless otherwise agreed, and (ii) subject to the version of the Uniform Customs and Practice for Documentary Credits in effect at the time of issuance (UCP), or International Standby Practices 1998 (ISP98), at PNC Bank’s discretion. 17. Obligor Second Obligor (if applicable) or Correspondent Bank Name: Name: By: By: (Signature) (Signature) Print Name: Print Name: Title: Title: Tel: Fax: Tel: Fax:

Exhibit 10.6

AMENDMENT NO. 1 TO FINANCING AGREEMENT

AMENDMENT NO. 1 TO FINANCING AGREEMENT (this “ Amendment ”), dated as of September 8, 2016, to the Financing Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement (as defined in the Financing Agreement) and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined in the Financing Agreement), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

WHEREAS, the Borrowers have requested that the Lenders make certain changes to the Financing Agreement and the Lenders are willing to make such modifications, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement.

2. Amendments to Definitions .

(a) New Definitions . The following new definitions are hereby added to Section 1.01, in alphabetical order:

“‘ Amendment No. 1 ’ means Amendment No. 1 to Financing Agreement, dated as of September 8, 2016, by and among the Agents, the Lenders and the Loan Parties.”

“‘ Amendment No. 1 Effective Date ’ means the “Amendment Effective Date” as defined in Amendment No. 1.”

“‘ First Amendment Term Loan ’ has the meaning specified therefor in Section 2.01(a)(ii) (as amended by Amendment No. 1).”

“‘ First Amendment Term Loan Commitment ’ means, with respect to each Lender, the commitment of such Lender to make the First Amendment Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A) hereto (as amended by Amendment No. 1), as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.”


“‘ Initial Term Loan ’ has the meaning specified therefor in Section 2.01(a)(ii) (as amended by Amendment No. 1).”

“‘ Initial Term Loan Commitment ’ with respect to each Lender, the original commitment of such Lender to make the Initial Term Loan to the Borrowers on the Effective Date in the amount set forth in Schedule 1.01(A) hereto (as in effect on the Effective Date), as such commitments were reduced on the Effective Date in accordance with the terms of this Agreement.”

(b) Existing Definitions . The following existing definitions set forth in Section 1.01 of the Financing Agreement are hereby amended and restated in their entirety, to read as follows:

‘Borrowing Base ’ means, at any time, an amount equal to (1) the lesser of (A) the then-existing Maximum Revolving Loan Amount and (B) the sum of (i) the lesser of (x) seventy percent (70%) of the Book Value of Eligible Inventory of the Borrowers at such time and (y) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Inventory of the Borrowers at such time, plus (ii) the lesser of (x) ten percent (10%) of the then-existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, plus (iii) eighty-five percent (85%) of the Net Amount of Eligible Domestic Accounts Receivable of the Borrowers at such time, plus (iv) the lesser of (x) twenty percent (20%) of the then-existing Maximum Revolving Loan Amount and (y) eighty-five percent (85%) of the Net Amount of Eligible Foreign Accounts Receivable of the Borrower at such time, plus (v) the lesser of (x) thirty percent (30%) of the then existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible Special Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Special Inventory of the Borrowers at such time, minus (2) the aggregate amount of Reserves established by the Administrative Agent at such time.”

‘Consolidated EBITDA ’ means, with respect to any Person for any period, (a) Consolidated Net Income plus (b) without duplication, the sum of the following amounts to the extent deducted in determining Consolidated Net Income of such Person and its Subsidiaries for such period: (i) Consolidated Net Interest Expense, (ii) income tax expense minus any income tax benefit recorded (but only to the extent such result is a positive number), (iii) depreciation expense, (iv) amortization expense, (v) Permitted Management Fees paid or accrued by such Person or its Subsidiaries to any of its Affiliates during such period, (vi) fees and expenses for third party professionals, agents and advisors and other transaction costs and expenses incurred in connection with the closing of the Acquisition, the Loan Documents and Permitted Acquisitions (whether or not consummated) after the Effective Date (including (A) in connection with the closing of the Acquisition, fees payable to the Permitted Holders and their Affiliates in an aggregate amount not to exceed $11,700,000, and consent fees payable to third party licensors and lessors in an aggregate amount not to exceed $8,500,000; provided that the amount of such fees and expenses are actually incurred within 180 days of the Effective Date and (B) any other Permitted Acquisitions (whether or not consummated) and any initial public offering (whether or not consummated) after the Effective Date to the extent the aggregate amount of such fees and expenses under this subclause (B) does not exceed $2,000,000 in any Fiscal Year), (vii) non-cash compensation expense (including deferred

 

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non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and similar arrangements, (viii) all other non-cash, non-recurring charges (other than any such non-cash expenses or charges that represent an accrual or reserve for future cash expenses or charges or a write-down or write-off of current assets (other than as a result of the application of purchase accounting)), including, without limitation, non-cash exchange, translation, or performance losses relating to any hedging transactions or foreign currency fluctuation, non-cash charges in respect of earnouts, non-cash mark-to-market expenses relating to any Hedging Agreement permitted hereunder, non-cash stock or equity compensation and non-cash charges associated with any write-off of deferred amortization costs, (ix) non-recurring cash charges resulting from severance, consulting, advisory and other similar transition expenses, stay or sign-on bonuses, retirement of debt, restructuring, consolidation, transition integration and other similar adjustments made as a result of Permitted Acquisitions and other Permitted Investments (including facility start-up costs and pursuit and broken deal costs in respect of acquisitions and investments); provided, that the amounts added back pursuant to this clause (ix) and clause (x) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (x) pro forma cost savings and synergies (net of actual amounts realized) in connection with any Permitted Acquisition or other Permitted Investments that are identifiable, factually supported and validated by an independent third party financial analysis and expected to occur within the next twelve (12) months based on specifically identifiable actions which have been taken or will be taken; provided, that the amounts added back pursuant to this clause (x) and clause (ix) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (xi) any charges associated with the Funko Earnout, (xii) to the extent not included in Consolidated Net Income, cash proceeds of business interruption insurance received during such period and the proceeds of any indemnification payments received from third parties for items to the extent such items reduced Consolidated Net Income, (xiii) Pro Forma EBITDA from Permitted Acquisitions supported by a quality of earnings report or a certified analysis of the CFO of the Borrower, in either case the results of which shall be reasonably satisfactory to the Collateral Agent, (xiv) expenses in respect of compensation (including payroll taxes) paid to any member of management in lieu of not exercising options in respect of equity in the Borrower (or any direct or indirect parent of the Borrower) to the extent such compensation is limited to such member’s pro rata share of the distribution to be funded with the proceeds of the First Amendment Term Loan, (xv) non-cash expenses due to a step-up of inventory value required as a result of the Acquisition and any Permitted Acquisition and (xvi) fees in connection with obtaining and the maintenance of ratings by Standard & Poor’s and Moody’s. Notwithstanding the foregoing, for purposes of calculating the Senior Leverage Ratio only, (x) for the fiscal quarter ended June 30, 2015, Consolidated EBITDA shall be equal to $16,242,000, and (y) for the fiscal quarter ended September 30, 2015, Consolidated EBITDA shall be equal to $24,019,000.”

‘“ Eligible Special Inventory ’ means any Inventory of the Borrower that does not constitute Eligible Inventory or Eligible In-Transit Inventory solely as a result of restrictions or requirements contained in any license or similar agreement relating to such Inventory where the effect of such restrictions or requirements is to cause the requirements of clauses (a), (c) or (g) of the definition of Eligible Inventory to not be satisfied.”

 

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“‘ Excess Cash Flow ’ means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, plus (b) proceeds from any Extraordinary Receipts received during such period to the extent not included in the calculation of Consolidated EBITDA, plus (c) the decrease, if any, in Consolidated Adjusted Working Capital during such period, less (d) the increase, if any, in Consolidated Adjusted Working Capital during such period, less (e) the sum of (i) all scheduled cash principal payments, including any make-whole, prepayment premiums or call premiums not otherwise included pursuant to clause (ii) below, of such Person or any of its Subsidiaries during such period (but, in the case of a revolving credit facility, only to the extent that the commitment thereunder is permanently reduced by the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period, (iii) the cash portion of Capital Expenditures made by such Person and its Subsidiaries during such period (excluding Capital Expenditures to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes and tax distributions paid in cash by such Person and its Subsidiaries for such period, (vi) Permitted Management Fees described in clause (v) of the definition of Consolidated EBITDA that are paid in cash during such period to the extent such payments are permitted, (vii) (A) amounts added back to Consolidated EBITDA for such period pursuant to clauses (vi), (ix), (x), (xi), (xiii) and (xvi) of the definition of “Consolidated EBITDA” and (B) any portion of Pro Forma EBITDA added back to Consolidated EBITDA for such period pursuant to clause (xiii) of the definition of “Consolidated EBITDA” that is attributable to periods prior to the consummation of the corresponding Permitted Acquisition and (viii) cash payments during such period that were paid in respect of Permitted Acquisitions, the Funko Earnout, the Funko Earnout Preferred Equity or Permitted Investments pursuant to clause (p) of the definition thereof, in each case, to the extent not financed through the incurrence of Indebtedness (other than Indebtedness constituting a Revolver Credit Extension) or through an Equity Issuance.”

‘“ LIBOR Rate ’ means, for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by the Administrative Agent (rounded upwards if necessary, to the next 1/100% of 1%) by dividing (i) applicable LIBOR for such Interest Period by (ii) 1.00 minus the Reserve Percentage; provided that such LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage; provided , further , that from and after the Amendment No. 1 Effective Date, the LIBOR Rate with respect to Revolving Loans shall be the Daily LIBOR Rate.”

“‘ Term Loan ’ has the meaning specified therefor in Section 2.01(a)(ii).”

“‘ Total Term Loan Commitment ’ means, collectively, the sum of the amounts of the Lenders’ Term Loan Commitments and First Amendment Term Loan Commitments.”

(c) All references to, and the defined terms, “Permitted Special Activated Amount” and “Permitted Special Inventory Amount” are hereby deleted.

3. Commitments . Section 2.01(a)(ii) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(ii) On the Effective Date, the Lenders with Initial Term Loan Commitments made term loans (collectively, the “ Initial Term Loan ”) to the Borrowers in an aggregate amount equal to $175,000,000. As of the date of Amendment No. 1 Effective Date, the aggregate outstanding principal balance of the Initial Term Loan is $171,700,000.

 

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Subject to the terms and conditions of this Agreement, on the Amendment No. 1 Effective Date each Lender with a First Amendment Term Loan Commitment agrees (severally, not jointly or jointly and severally) to make term loans (collectively, the “ First Amendment Term Loan ”, and together with the Initial Term Loan, the “ Term Loan ”) to the Borrowers in an amount equal to such Lender’s Pro Rata Share of the First Amendment Term Loan Commitment, which, for the sake of clarity, shall be an amount equal to $50,000,000 in the aggregate, such that, after giving effect to the making of such First Amendment Term Loan, the aggregate outstanding principal balance of the Term Loan is equal to $221,700,000 on the Amendment No. 1 Effective Date.”

4. Commitments .

(a) Section 2.01(b)(iii) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(iii) The aggregate principal amount of the First Amendment Term Loan made on the Amendment No. 1 Effective Date shall not exceed the First Amendment Term Loan Commitment. Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.”

(b) Section 2.01(c) of the Financing Agreement is hereby deleted.

5. Making the Loans . Section 2.02(a) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(a) An Authorized Officer on behalf of the Administrative Borrower, as applicable, shall (I) give the Administrative Agent prior telephonic notice immediately confirmed in writing in substantially the form of Exhibit C hereto (a “ Notice of Borrowing ”), not later than (i) 12:00 noon (New York City time) on the date which is three (3) applicable Business Days prior to the date of a proposed LIBOR Rate Loan or (ii) 12:00 noon (New York City time) on the date of a proposed Reference Rate Loan on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan (which shall be denominated in Dollars), (ii) in the case of Loans requested on the Effective Date, whether such Loan is requested to be a Revolving Loan or the Term Loan, (iii) whether the Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of any such LIBOR Rate Loan, the initial Interest Period with respect thereto, (iv) the use of the proceeds of such proposed Loan, (v) the proposed borrowing date, which must be an applicable Business Day, and, with respect to the Term Loan, must be the Effective Date or the Amendment No. 1 Effective Date. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from any Authorized Officer of Administrative Borrower designated in writing to the Administrative Agent. Each Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Loan on behalf of the Borrowers until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.”

 

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6. Amendment to Section 2.03(b) (Amortization) . Section 2.03(b) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(b) The outstanding principal amount of the Term Loan shall be repayable in consecutive quarterly installments equal to $2,150,000 per quarter, with each such installment to be due and payable on the last day of each quarter commencing on March 31, 2016 until the Final Maturity. The outstanding unpaid principal amount of the Term Loan and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (i) the termination of the Total Revolving Credit Commitment, (ii) the date of the acceleration of the Term Loans in accordance with the terms hereof and (iii) the Final Maturity Date.”

7. Amendment to Section 2.04(a) . Section 2.04(a) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(a) Revolving Loans . Prior to the Amendment No. 1 Effective Date, subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan, shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each such Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus 2.00%. Each such Revolving Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for such Loan plus 2.50%. From and after the Amendment No. 1 Effective Date, each Revolving Loan shall only be a LIBOR Rate Loan and all Revolving Loans shall bear interest on the principal amount of Revolving Loans from time to time outstanding at a rate per annum equal to the LIBOR Rate plus 2.50%.”

8. LIBOR Option . Section 2.07(a) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(a) In lieu of having interest charged at the rate based upon the Reference Rate, the Borrowers shall have the option (the “LIBOR Option”) to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate. Each Interest Period of a LIBOR Rate Loan made to Borrowers shall commence on the date such LIBOR Rate Loan is made and shall end on such date as the Borrower may elect as set forth in subsection 2.02(a) above; provided that no Interest Period shall end after the last day of the Final Maturity Date; provided, further, from and after the Amendment No. 1 Effective Date, notwithstanding anything in this Agreement to the contrary, all Revolving Loans shall have interest charged based upon the LIBOR Rate.”

9. Use of Proceeds . Section 6.01(t) of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“(t) Use of Proceeds . The proceeds of the Loans (other than the First Amendment Term Loan) shall be used to (a) finance a portion of the Purchase Price for the Funko Acquisition, (b) pay fees and expenses in connection with the transactions contemplated hereby, (c) refinance certain Indebtedness of the Borrowers, (d) fund working capital and other general corporate purposes of the Borrowers and (e) to fund the working capital adjustment in connection with the Acquisition, if any. The proceeds of the First Amendment Term Loan shall be used to fund a distribution to be paid by the Ultimate Parent to its direct and indirect investors in an aggregate amount not to exceed $50,000,000. The Letters of Credit will be used for working capital and other general corporate purposes.”

 

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10. Restricted Payments . Section 7.02(h) of the Financing Agreement is hereby amended by:

(a) restating subclause (A)(III) in its entirety, to read as follows:

“(III) the Loan Parties may make tax distributions to or on behalf of the Ultimate Parent in amounts sufficient to enable Ultimate Parent to make all tax distributions required pursuant to the Funko LLC Agreement (it being understood that, if an Event of Default has occurred and is continuing, to the extent any such tax distributions made in accordance with Funko LLC Agreement results in distributions to (or for the account of) the Permitted Holders in excess of amounts required to be paid by the Permitted Holders in relation to the tax liabilities of its direct and indirect investors, the Permitted Holders shall cause such excess amount to be held by ACON Funko Investors, L.L.C. or a newly formed subsidiary that shall be a Guarantor (with recourse limited to the deposit account holding any such excess amount) in a controlled deposit account pledged to the Collateral Agent, and such excess amounts may be used to make equity contributions to the Borrower or to fund tax distributions to the Permitted Holders that would otherwise be permitted to be distributed by the Borrower to the extent such distributions are not duplicative of future permitted tax distributions made by the Loan Parties to their equity holders),” and

(b) (i) deleting the “and” immediately after subclause (F) thereof and substituting “,” therefor, and (ii) immediately inserting a new subclause (H), immediately following subclause (G), to read as follows:

“, and (H) the Loan Parties may make distributions to the Ultimate Parent solely to enable the Ultimate Parent to, and the Ultimate Parent may, pay a distribution in an amount not to exceed $50,000,000 on the Amendment No. 1 Effective Date or within five (5) Business Days thereof”

11. Commitment Schedule . Schedule 1.01(A) to the Financing Agreement is hereby replaced by Schedule 1.01(A) attached as Annex I to this Amendment.

12. Conditions Precedent to Effectiveness of this Amendment . This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “ Amendment Effective Date ”):

(a) Amendment . Each Agent shall have received this Amendment fully executed by the Loan Parties and the Lenders.

(b) Proceedings; Receipt of Documents . All proceedings in connection with this Amendment, and all documents incidental hereto and thereto, shall be satisfactory to the Lenders, and each Agent shall have received all such information or certified or other copies of such documents as any Lender may reasonably request.

(c) Amendment/Commitment Fees . The Administrative Agent shall have received, (i) on behalf of the Lenders holding Initial Term Loans on the Amendment No. 1 Effective Date, an amendment fee in an aggregate amount equal to $858,500, and (ii) on behalf of the Lenders providing First Amendment Term Loan Commitments on the Amendment No. 1 Effective Date, a commitment fee in an aggregate amount equal to $1,500,000, in each case, by wire transfer in immediately available funds.

 

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(d) Notice of Borrowing . The Administrative Agent shall have received an executed Notice of Borrowing in connection with the First Amendment Term Loan.

(e) Representations and Warranties; No Default . (i) All representations and warranties contained in the Financing Agreement, in Section 13 hereof and in the other Loan Documents in effect on the Amendment Effective Date shall be true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or would result from this Amendment or the other Loan Documents becoming effective in accordance with its or their respective terms.

(f) Legality . The making of the First Amendment Term Loans shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C Issuer.

(g) Opinion . The Agents shall have received an opinions of (i) Hogan Lovells, counsel to the Loan Parties, (ii) Richards Layton & Finger, Delaware counsel to the Loan Parties, and (iii) Karr Tuttle Campbell, Washington counsel to the Loan Parties, in each case, as to such customary matters as the Agents may reasonably request.

(h) Solvency Certificate . The Collateral Agent shall have received a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent.

(i) Good Standings . The Agents shall have received a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Amendment Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions.

(j) Governing Documents . The Agents shall have received a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Amendment Effective Date by an Authorized Officer of such Loan Party; provided , that, if such Governing Documents have not been amended, supplemented or otherwise modified since the Effective Date, such certificate may include a certification by such Authorized Officer that no such changes have been made to such Governing Documents, in lieu attaching copies of such documents.

(k) Incumbency . The Agents shall have received a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign this Amendment and each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives.

(l) Resolutions . The Agents shall have received a copy of the resolutions of each Loan Party, certified as of the Amendment Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith.

 

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(m) Closing Certificate . The Agents shall have received a certificate of an Authorized Officer of each Loan Party, certifying as to the matters set forth in subclause (e) above.

(n) Expenses . The Agents shall have received payment of all fees and expenses which are due and payable as of the Amendment Effective Date, pursuant to Section 12.04 of the Financing Agreement.

(o) Flow of Funds Agreement . The Agents shall have received a Flow of Funds Agreement with respect to the First Amendment Term Loan, duly executed by the Borrowers, the Lenders and the Agents.

13. Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default . The representations and warranties herein, in Article VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment and each other Loan Document to which it is or will be a party, and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

 

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(d) Enforceability of Loan Documents . This Amendment, the Financing Agreement as amended by this Amendment, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by principles of equity.

(e) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(f) Continued Effectiveness of Financing Agreement . Each Loan Party hereby (a) confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreement, and each reference in any other Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement, shall mean and be a reference to the Financing Agreement as amended by this Amendment, and (b) confirms and agrees that to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent or any Lender, or to grant to the Collateral Agent or any Lender a Lien on any collateral as security for the Obligations of such Loan Party from time to time existing in respect of the Financing Agreement and the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in all respects.

(g) Reaffirmation . Each Loan Party hereby reaffirms its obligations under each Loan Document to which it is a party. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document, to Collateral Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

14. No Other Waivers . Except as expressly provided in this Amendment, all of the terms and conditions of the Financing Agreement and the other Loan Documents remain in full force and effect. Nothing contained in this Amendment shall (a) be construed to imply a willingness on the part of the Agents or the Lenders to grant any similar or other future waiver or amendment of any of the terms and conditions of the Financing Agreement or the other Loan Documents or (b) in any way prejudice, impair or effect any rights or remedies of the Agents or the Lenders under the Financing Agreement or the other Loan Documents.

15. Miscellaneous .

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or electronic mail transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

 

10


(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York .

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement, as and when provided in Section 9.01 of the Financing Agreement, if (i) any representation or warranty made by a Loan Party under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) a Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.

(e) Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release, waiver and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “ Released Parties ”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.

(f) This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(g) The Borrowers agree to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Lenders in connection with the preparation, execution and delivery of this Amendment and the other related agreements, instruments and documents.

 

11


(h) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE REVISIONS CONTEMPLATED HEREIN.

[Remainder of Page Left Intentionally Blank]

 

12


IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

 

BORROWERS :
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title:   Chief Financial Officer and Secretary
FUNKO HOLDINGS LLC
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title:   Chief Financial Officer and Secretary
FUNKO, LLC
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title:   Chief Financial Officer and Secretary

AMENDMENT NO 1. TO

FINANCING AGREEMENT


COLLATERAL AGENT :
CERBERUS BUSINESS FINANCE, LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Chief Executive Officer

AMENDMENT NO 1. TO

FINANCING AGREEMENT


ADMINISTRATIVE AGENT AND LENDER :
PNC BANK, NATIONAL ASSOCIATION
By:   /s/ Brandon Schmoyer
  Name: Brandon Schmoyer
  Title:   Assistant Vice President

AMENDMENT NO 1.

TO FINANCING AGREEMENT


LENDERS :
CERBERUS ASRS FUNDING LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS AUS LEVERED HOLDINGS LP
By:   CAL I GP Holdings LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director
CERBERUS AUS LEVERED II LP
By:   CAL II GP LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS ICQ LEVERED LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS KRS LEVERED LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS LOAN FUNDING XV L.P.
By:   Cerberus ICQ GP, LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director
 

AMENDMENT NO 1. TO

FINANCING AGREEMENT


CERBERUS N-1 FUNDING LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS PSERS LEVERED LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS SWC LEVERED LP
By:   Cerberus SL GP LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS LEVERED LOAN OPPORTUNITIES FUND III, L.P.
By:   Cerberus Levered Opportunities III GP, LLC, its
General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director
CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.
By:  

Cerberus NJ Credit Opportunities GP, LLC,

its General Partner

By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director

AMENDMENT NO 1. TO

FINANCING AGREEMENT


CERBERUS ASRS HOLDINGS LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Vice President
CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus ICQ Levered Opportunities GP, LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director
CERBERUS KRS LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus KRS Levered Opportunities GP, LLC, its General Partner
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director
CERBERUS PSERS LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:  

Cerberus PSERS Levered Opportunities GP,

LLC, its General Partner

By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title:   Senior Managing Director

AMENDMENT NO 1. TO

FINANCING AGREEMENT


FORTRESS CREDIT OPPORTUNITIES III CLO LP
By:   FCO III CLO GP LLC, its General Partner
By:   /s/ Jason Meyer
  Name: Jason Meyer
  Title:   Authorized Signatory
FORTRESS CREDIT OPPORTUNITIES V CLO
LIMITED
By:   FCO V CLO CM LLC, its Collateral Manager
By:   /s/ Jason Meyer
  Name: Jason Meyer
  Title:   Authorized Signatory
FORTRESS CREDIT OPPORTUNITIES VII CLO
LIMITED
By:   FCO VII CLO CM LLC, its Collateral Manager
By:   /s/ Jason Meyer
  Name: Jason Meyer
  Title:   Chief Administrative Officer
FORTRESS CREDIT OPPORTUNITIES VI CLO
LIMITED
By:   FCO VI CLO CM LLC, its Collateral Manager
By:   /s/ Jason Meyer
  Name: Jason Meyer
  Title:   Chief Administrative Officer
FORTRESS CREDIT FUNDING V LP
By:   Fortress Credit Funding V GP LLC, its General Partner
By:   /s/ Jason Meyer
  Name: Jason Meyer
  Title:   Authorized Signatory

AMENDMENT NO 1. TO

FINANCING AGREEMENT


ANNEX I

SCHEDULE 1.01(A)

LENDERS AND LENDERS’ COMMITMENTS

 

Lender

   Revolving Loan
Commitment
     Initial Term Loan
Amount as of the
Amendment No. 1
Effective Date
     First
Amendment
Term Loan
Commitment
     Total  

PNC Bank, National Association

   $ 50,000,000.00      $ 0      $ 0      $ 50,000,000.00  

Cerberus ASRS Funding LLC

   $ 0      $ 51,886,068.22      $ 0      $ 51,886,068.22  

Cerberus AUS Levered Holdings LP

   $ 0      $ 5,099,026.01      $ 0      $ 5,099,026.01  

Cerberus AUS Levered II LP

   $ 0      $ 2,694,272.09      $ 0      $ 2,694,272.09  

Cerberus ICQ Levered LLC

   $ 0      $ 9,322,984.10      $ 0      $ 9,322,984.10  

Cerberus KRS Levered LLC

   $ 0      $ 5,150,466.45      $ 0      $ 5,150,466.45  

Cerberus Loan Funding XV L.P.

   $ 0      $ 7,527,259.81      $ 0      $ 7,527,259.81  

Cerberus N-1 Funding LLC

   $ 0      $ 17,018,550.41      $ 0      $ 17,018,550.41  

Cerberus PSERS Levered LLC

   $ 0      $ 22,195,192.50      $ 0      $ 22,195,192.50  

Cerberus SWC Levered, L.P.

   $ 0      $ 11,560,466.13      $ 0      $ 11,560,466.13  

Cerberus Levered Loan Opportunities Fund III, L.P.

   $ 0      $ 0      $ 9,158,902.43      $ 9,158,902.43  

Cerberus NJ Credit Opportunities Fund, L.P.

   $ 0      $ 0      $ 2,040,800.06      $ 2,040,800.06  

Cerberus ASRS Holdings LLC

   $ 0      $ 0      $ 6,904,511.10      $ 6,904,511.10  

Cerberus ICQ Levered Loan Opportunities Fund, L.P.

   $ 0      $ 0      $ 7,193,073.07      $ 7,193,073.07  

Cerberus KRS Levered Loan Opportunities Fund, L.P.

   $ 0      $ 0      $ 836,037.34      $ 836,037.34  


Cerberus PSERS Levered Loan Opportunities Fund, L.P.

   $ 0      $ 0      $ 3,866,676.00      $ 3,866,676.00  

Fortress Credit Opportunities III CLO LP

   $ 0      $ 10,745,877.29      $ 5,000,000.00      $ 15,745,877.29  

Fortress Credit Opportunities V CLO Limited

   $ 0      $ 9,811,428.58      $ 9,000,000.00      $ 18,811,428.58  

Fortress Credit Opportunities VII CLO Limited

   $ 0      $ 9,811,428.58      $ 6,000,000.00      $ 15,811,428.58  

Fortress Credit Opportunities VI CLO Limited

   $ 0      $ 4,952,408.43      $ 0      $ 4,952,408.43  

Fortress Credit Funding V LP

   $ 0      $ 3,924,571.40      $ 0      $ 3,924,571.40  
  

 

 

    

 

 

    

 

 

    

 

 

 

Totals

   $ 50,000,000.00      $ 171,700,000.00      $ 50,000,000      $ 271,700,000.00  
  

 

 

    

 

 

    

 

 

    

 

 

 

AMENDMENT NO 1. TO

FINANCING AGREEMENT

Exhibit 10.7

AMENDMENT NO. 2 TO FINANCING AGREEMENT

AMENDMENT NO. 2 TO FINANCING AGREEMENT (this “ Amendment ”), dated as of October 13, 2016, to the Financing Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement (as defined in the Financing Agreement) and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined in the Financing Agreement), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

WHEREAS, the Borrowers have requested that the Lenders make certain changes to the Financing Agreement and the Lenders are willing to make such modifications, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement.

2. Fixed Charge Coverage Ratio . The definition of “Fixed Charge Coverage Ratio” set forth in Section 1.01 of the Financing Agreement is hereby amended and restated in its entirety, to read as follows:

“‘ Fixed Charge Coverage Ratio ’ means, with respect to any Person for any period, the ratio of (a) the result of (i) Consolidated EBITDA of such Person and its Subsidiaries for such period, minus (ii) the sum of (x) unfinanced Capital Expenditures made by such Person and its Subsidiaries during such period (excluding expenditures representing the purchase price for any Permitted Acquisition or Investment permitted pursuant to clause (p) of the definition thereof), plus (y) cash income taxes paid by such Person and its Subsidiaries during such period, plus (z) all Permitted Management Fees paid in cash by such Person or any of its Subsidiaries to any of its Affiliates during such period, to (b) the sum of (i) all scheduled installments of principal of Indebtedness (excluding any principal payments made in relation to the Funko Earnout or any Funko Earnout Preferred Equity) of such Person and its Subsidiaries paid during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Cash Interest Expense of such Person and its Subsidiaries for such period, plus (iii) cash dividends or distributions paid, or the purchase, redemption or other acquisition or


retirement for value (including in connection with any merger or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions (A) paid by a Loan Party to any other Loan Party, (B) constituting tax distributions, (C) by Ultimate Parent in relation to the Funko Earnout Preferred Equity, including, without limitation, for purposes of redemptions of the Funko Earnout Preferred Equity or (D) made on or about the Amendment No. 1 Effective Date pursuant to Section 7.02(h)(H)) during such period (clauses (b)(i), (b)(ii) and (b)(iii), collectively, “ Fixed Charges ”); provided , that (x) for the fiscal quarter ending March 31, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on March 31, 2016, (y) for the fiscal quarter ending June 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on June 30, 2016), and (z) for the fiscal quarter ending September 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on September 30, 2016.”

3. Conditions Precedent to Effectiveness of this Amendment . This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “ Amendment Effective Date ”):

(a) Amendment . Each Agent shall have received this Amendment fully executed by the Loan Parties and the Lenders.

(b) Representations and Warranties; No Default . (i) All representations and warranties contained in the Financing Agreement, in Section 4 hereof and in the other Loan Documents in effect on the Amendment Effective Date shall be true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or would result from this Amendment or the other Loan Documents becoming effective in accordance with its or their respective terms.

4. Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default . The representations and warranties herein, in Article VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

 

2


(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment and each other Loan Document to which it is or will be a party, and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(d) Enforceability of Loan Documents . This Amendment, the Financing Agreement as amended by this Amendment, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by principles of equity.

(e) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(f) Continued Effectiveness of Financing Agreement . Each Loan Party hereby (a) confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreement, and each reference in any other Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement, shall mean and be a reference to the Financing Agreement as amended by this Amendment, and (b) confirms and agrees that to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent or any Lender, or to grant to the Collateral Agent or any Lender a Lien on any collateral as security for the Obligations of such Loan Party from time to time existing in respect of the Financing Agreement and the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in all respects.

(g) Reaffirmation . Each Loan Party hereby reaffirms its obligations under each Loan Document to which it is a party. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document, to Collateral Agent, as collateral security for

 

3


the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

5. No Other Waivers . Except as expressly provided in this Amendment, all of the terms and conditions of the Financing Agreement and the other Loan Documents remain in full force and effect. Nothing contained in this Amendment shall (a) be construed to imply a willingness on the part of the Agents or the Lenders to grant any similar or other future waiver or amendment of any of the terms and conditions of the Financing Agreement or the other Loan Documents or (b) in any way prejudice, impair or effect any rights or remedies of the Agents or the Lenders under the Financing Agreement or the other Loan Documents.

6. Miscellaneous .

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or electronic mail transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York .

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement, as and when provided in Section 9.01 of the Financing Agreement, if (i) any representation or warranty made by a Loan Party under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) a Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.

(e) Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release, waiver and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “ Released Parties ”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in

 

4


each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.

(f) This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(g) The Borrowers agree to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Lenders in connection with the preparation, execution and delivery of this Amendment and the other related agreements, instruments and documents.

(h) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE REVISIONS CONTEMPLATED HEREIN.

[Remainder of Page Left Intentionally Blank]

 

5


IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

 

BORROWERS :
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary
FUNKO HOLDINGS LLC
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary
FUNKO, LLC
By:   /s/ Russell Nickel
  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary

AMENDMENT NO. 2 TO

FINANCING AGREEMENT


COLLATERAL AGENT :
CERBERUS BUSINESS FINANCE, LLC
By:   /s/ Dan Wolf
  Name: Dan Wolf
  Title: Chief Executive Officer

AMENDMENT NO. 2 TO

FINANCING AGREEMENT


ADMINISTRATIVE AGENT AND LENDER :
PNC BANK, NATIONAL ASSOCIATION
By:   /s/ Brandon Schmoyer
  Name: Brandon Schmoyer
  Title: Assistant Vice President

AMENDMENT NO. 2 TO

FINANCING AGREEMENT


LENDERS :
CERBERUS ASRS FUNDING LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS AUS LEVERED HOLDINGS LP
By:   CAL I GP Holdings LLC
Its:   General Partner
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Senior Managing Director
CERBERUS AUS LEVERED II LP
By:   CAL II GP LLC
Its:   General Partner
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS ICQ LEVERED LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS KRS LEVERED LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President

AMENDMENT NO. 2 TO

FINANCING AGREEMENT


CERBERUS LOAN FUNDING XV L.P.
By:   Cerberus ICQ GP, LLC
Its:   General Partner
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Senior Managing Director
CERBERUS N-1 FUNDING LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS ONSHORE LEVERED III LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS PSERS LEVERED LLC
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President
CERBERUS SWC LEVERED, L.P.
By:   Cerberus SL GP LLC
Its:   General Partner
By:   /s/ Dan Wolf
Name:   Dan Wolf
Title:   Vice President

AMENDMENT NO. 2 TO

FINANCING AGREEMENT


FORTRESS CREDIT OPPORTUNITIES III CLO LP
By:   FCO III CLO GP LLC, its General Partner
By:   /s/ Constantine M. Dakolias
  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES V CLO LIMITED
By:   FCO V CLO CM LLC, its Collateral Manager
By:   /s/ Constantine M. Dakolias
  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES VII CLO LIMITED
By:   FCO VII CLO CM LLC, its Collateral Manager
By:   /s/ Constantine M. Dakolias
  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES VI CLO LIMITED
By:   FCO VI CLO CM LLC, its Collateral Manager
By:   /s/ Constantine M. Dakolias
  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT FUNDING V LP
By:   Fortress Credit Funding V GP LLC, its General Partner
By:   /s/ Constantine M. Dakolias
  Name: Constantine M. Dakolias
  Title: President

AMENDMENT NO. 2 TO

FINANCING AGREEMENT

Exhibit 10.8

AMENDMENT NO. 3 TO FINANCING AGREEMENT

AMENDMENT NO. 3 TO FINANCING AGREEMENT (this “ Amendment ”), dated as of January 17, 2017, to the Financing Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement (as defined in the Financing Agreement) and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined in the Financing Agreement), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

WHEREAS, the Borrowers have requested that the Lenders make certain changes to the Financing Agreement and the Lenders are willing to make such modifications, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement, as amended by this Amendment.

2. Amendments . The Financing Agreement is hereby amended (a) to delete the red or green stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text ) and (b) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text ), in each case, as set forth in the marked copy of the Financing Agreement attached hereto as Exhibit A hereto and made a part hereof for all purposes.

3. Conditions Precedent to Effectiveness of this Amendment . This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “ Amendment Effective Date ”):

(a) Amendment . Each Agent shall have received this Amendment fully executed by the Loan Parties and the Lenders.

(b) Proceedings; Receipt of Documents . All proceedings in connection with this Amendment, and all documents incidental hereto and thereto, shall be satisfactory to the Lenders, and each Agent shall have received all such information or certified or other copies of such documents as any Lender may reasonably request.


(c) Fees . The Administrative Agent shall have received the fees due and payable under the Fee Letter by wire transfer in immediately available funds.

(d) Notice of Borrowing . The Administrative Agent shall have received an executed Notice of Borrowing in connection with the Term Loan B.

(e) Representations and Warranties; No Default . (i) All representations and warranties contained in the Financing Agreement, in Section 4 hereof and in the other Loan Documents in effect on the Amendment Effective Date shall be true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or would result from this Amendment or the other Loan Documents becoming effective in accordance with its or their respective terms.

(f) Legality . The making of the Term Loan B shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C Issuer.

(g) Opinion . The Agents shall have received an opinions of (i) Hogan Lovells, counsel to the Loan Parties, (ii) Richards Layton & Finger, Delaware counsel to the Loan Parties, and (iii) Karr Tuttle Campbell, Washington counsel to the Loan Parties, in each case, as to such customary matters as the Agents may reasonably request.

(h) Solvency Certificate . The Collateral Agent shall have received a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent.

(i) Good Standings . The Agents shall have received a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Amendment Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions.

(j) Governing Documents . The Agents shall have received a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Amendment Effective Date by an Authorized Officer of such Loan Party; provided , that, if such Governing Documents have not been amended, supplemented or otherwise modified since the Effective Date, such certificate may include a certification by such Authorized Officer that no such changes have been made to such Governing Documents, in lieu attaching copies of such documents.

(k) Incumbency . The Agents shall have received a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign this Amendment and each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives.

 

2


(l) Resolutions . The Agents shall have received a copy of the resolutions of each Loan Party, certified as of the Amendment Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith.

(m) Closing Certificate . The Agents shall have received a certificate of an Authorized Officer of each Loan Party, certifying as to the matters set forth in subclause (e) above.

(n) Expenses . The Agents shall have received payment of all fees and expenses which are due and payable as of the Amendment Effective Date, pursuant to Section 12.04 of the Financing Agreement.

(o) Flow of Funds Agreement . The Agents shall have received a Flow of Funds Agreement with respect to the Term Loan B, duly executed by the Borrowers, the Lenders and the Agents.

4. Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default . The representations and warranties herein, in Article VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

 

3


(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment and each other Loan Document to which it is or will be a party, and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(d) Enforceability of Loan Documents . This Amendment, the Financing Agreement as amended by this Amendment, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by principles of equity.

(e) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(f) Continued Effectiveness of Financing Agreement . Each Loan Party hereby (a) confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreement, and each reference in any other Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement, shall mean and be a reference to the Financing Agreement as amended by this Amendment, and (b) confirms and agrees that to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent or any Lender, or to grant to the Collateral Agent or any Lender a Lien on any collateral as security for the Obligations of such Loan Party from time to time existing in respect of the Financing Agreement and the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in all respects.

(g) Reaffirmation . Each Loan Party hereby reaffirms its obligations under each Loan Document to which it is a party. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document, to Collateral Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

5. No Other Waivers . Except as expressly provided in this Amendment, all of the terms and conditions of the Financing Agreement and the other Loan Documents remain in full force and effect. Nothing contained in this Amendment shall (a) be construed to imply a willingness on the part of the Agents or the Lenders to grant any similar or other future waiver or amendment of any of the terms and conditions of the Financing Agreement or the other Loan Documents or (b) in any way prejudice, impair or effect any rights or remedies of the Agents or the Lenders under the Financing Agreement or the other Loan Documents.

 

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6. Miscellaneous .

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or electronic mail transmission shall be effective as delivery of a manually executed counterpart of this Amendment, but upon the request of an Agent the parties shall deliver original executed copies of the Amendment.

(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York .

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement, as and when provided in Section 9.01 of the Financing Agreement, if (i) any representation or warranty made by a Loan Party under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) a Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.

(e) Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release, waiver and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “ Released Parties ”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.

 

5


(f) This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(g) The Borrowers agree to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Lenders in connection with the preparation, execution and delivery of this Amendment and the other related agreements, instruments and documents.

(h) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE REVISIONS CONTEMPLATED HEREIN.

[Remainder of Page Left Intentionally Blank]

 

6


IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

 

BORROWERS:
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:  

/s/ Russell Nickel

Name: Russell Nickel

  Title: Chief Financial Officer and Secretary
FUNKO HOLDINGS LLC
By:  

/s/ Russell Nickel

Name: Russell Nickel

  Title: Chief Financial Officer and Secretary
FUNKO, LLC
By:  

/s/ Russell Nickel

Name: Russell Nickel

  Title: Chief Financial Officer and Secretary

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


COLLATERAL AGENT:
CERBERUS BUSINESS FINANCE, LLC
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Chief Executive Officer

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


ADMINISTRATIVE AGENT AND LENDER:
PNC BANK, NATIONAL ASSOCIATION
By:  

/s/ Brandon Schmoyer

 
  Name: Brandon Schmoyer
  Title: Assistant Vice President

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


 

LENDERS :

CERBERUS ASRS FUNDING LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS AUS LEVERED II LP

By:   CAL II GP LLC,

its General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS FSBA LEVERED LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President
CERBERUS ICQ LEVERED LLC
By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS KRS LEVERED LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS LOAN FUNDING XV L.P.

By:   Cerberus ICQ GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


CERBERUS LOAN FUNDING XVI LP

By: Cerberus PSERS GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

CERBERUS LOAN FUNDING XVII LTD.

By: Cerberus ASRS Holdings LLC, its attorney-in-fact

By:  

/s/ Daniel E. Wolf

  Duly Authorized Signatory
  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS N-1 FUNDING LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS ONSHORE LEVERED III LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS PSERS LEVERED LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


CERBERUS SWC LEVERED LP

By: Cerberus SL GP LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

 

Name: Daniel E. Wolf

 

Title: Vice President

 

CERBERUS ASRS HOLDINGS LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS FSBA HOLDINGS LLC

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Vice President

CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.

By: Cerberus ICQ Levered Opportunities GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

CERBERUS KRS LEVERED LOAN OPPORTUNITIES FUND, L.P.

By: Cerberus KRS Levered Opportunities GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


CERBERUS LEVERED LOAN OPPORTUNITIES FUND III, L.P.

By: Cerberus Levered Opportunities III GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.

By: Cerberus NJ Credit Opportunities GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

CERBERUS PSERS LEVERED LOAN OPPORTUNITIES FUND, L.P.

By: Cerberus PSERS Levered Opportunities GP, LLC

Its: General Partner

By:  

/s/ Daniel E. Wolf

  Name: Daniel E. Wolf
  Title: Senior Managing Director

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


FORTRESS CREDIT OPPORTUNITIES III CLO LP
By:    FCO III CLO GP LLC, its General Partner
By:  

/s/ Constantine M. Dakolias

  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES V CLO LIMITED
By:    FCO V CLO CM LLC, its Collateral Manager
By:  

/s/ Constantine M. Dakolias

  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES VII CLO LIMITED
By:    FCO VII CLO CM LLC, its Collateral Manager
By:  

/s/ Constantine M. Dakolias

  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT OPPORTUNITIES VI CLO LIMITED
By:    FCO VI CLO CM LLC, its Collateral Manager
By:  

/s/ Constantine M. Dakolias

  Name: Constantine M. Dakolias
  Title: President
FORTRESS CREDIT FUNDING V LP
By:    Fortress Credit Funding V GP LLC, its General Partner
By:  

/s/ Constantine M. Dakolias

  Name: Constantine M. Dakolias
  Title: President

AMENDMENT NO. 3 TO

FINANCING AGREEMENT


EXHIBIT A

[See attached Redline of Financing Agreement]


EXECUTION VERSION

Incorporating Amendment 2 No. 3

FINANCING AGREEMENT

Dated as of October 30, 2015

by and among

FUNKO ACQUISITION HOLDINGS, L.L.C.,

as Ultimate Parent and a Borrower ,

FUNKO HOLDINGS LLC,

as Parent and a Borrower,

FUNKO, LLC

as a Borrower,

EACH OF THE GUARANTORS (AS DEFINED HEREIN),

as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

as Lenders,

CERBERUS BUSINESS FINANCE, LLC,

as Collateral Agent,

and

PNC BANK, NATIONAL ASSOCIATION

as Administrative Agent


TABLE OF CONTENTS

 

     Page  

ARTICLE I. DEFINITIONS; CERTAIN TERMS

     1  

Section 1.01 Definitions

     1  

Section 1.02 Terms Generally

     57  

Section 1.03 Certain Matters of Construction

     58  

Section 1.04 Accounting and Other Terms

     58  

Section 1.05 Time References; Notices

     59  

Section 1.06 Effectiveness of the Borrowers

     59  

ARTICLE II. THE LOANS

     59  

Section 2.01 Commitments

     59  

Section 2.02 Making the Loans

     60  

Section 2.03 Repayment of Loans; Evidence of Debt

     64  

Section 2.04 Interest

     65  

Section 2.05 Reduction of Commitment; Prepayment of Loans

     66  

Section 2.06 Fees

     70  

Section 2.07 LIBOR Option

     74  

Section 2.08 Funding Losses

     76  

Section 2.09 Taxes

     76  

Section 2.10 Increased Costs and Reduced Return

     80  

Section 2.11 Extended Term Loans and Extended Revolving Credit Commitments

     81  

Section 2.12 Mitigation Obligations; Replacement of Lenders

     86  

ARTICLE III. LETTERS OF CREDIT

     87  

Section 3.01 Letters of Credit

     87  

Section 3.02 Issuance of Letters of Credit

     87  

Section 3.03 Requirements For Issuance of Letters of Credit

     89  

Section 3.04 Disbursements, Reimbursement

     89  

Section 3.05 Repayment of Participation Revolving Loans

     91  

Section 3.06 Documentation

     91  

Section 3.07 Determination to Honor Drawing Request

     91  

Section 3.08 Nature of Participation and Reimbursement Obligations

     91  

Section 3.09 Indemnity

     93  

Section 3.10 Liability for Acts and Omissions

     93  

ARTICLE IV. APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF

BORROWERS

     95  

Section 4.01 Payments; Computations and Statements

     95  

Section 4.02 Sharing of Payments

     96  

Section 4.03 Apportionment of Payments

     97  

Section 4.04 Defaulting Lenders

     98  

Section 4.05 Joint and Several Liability of the Borrowers

     99  

 

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ARTICLE V. CONDITIONS TO LOANS

     101  

Section 5.01 Conditions Precedent to Effectiveness

     101  

Section 5.02 Conditions Precedent to All Loans and Letters of Credit

     105  

Section 5.03 Conditions Subsequent to Effectiveness

     105  

ARTICLE VI. REPRESENTATIONS AND WARRANTIES

     106  

Section 6.01 Representations and Warranties

     106  

ARTICLE VII. COVENANTS OF THE LOAN PARTIES

     116  

Section 7.01 Affirmative Covenants

     116  

Section 7.02 Negative Covenants

     127  

Section 7.03 Financial Covenants

     135  

ARTICLE VIII. MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE AND OTHER

COLLATERAL

     136  

Section 8.01 Collection of Accounts Receivable; Management of Collateral

     136  

Section 8.02 Covenant Re-Dating; Pledge of Credit

     138  

Section 8.03 Collateral Custodian

     138  

ARTICLE IX. EVENTS OF DEFAULT

     139  

Section 9.01 Events of Default

     139  

ARTICLE X. AGENTS

     143  

Section 10.01 Appointment

     143  

Section 10.02 Rights, Exculpation, Etc.

     144  

Section 10.03 Reliance

     145  

Section 10.04 Indemnification

     145  

Section 10.05 Agents Individually

     146  

Section 10.06 Successor Agent

     146  

Section 10.07 Collateral Matters

     147  

Section 10.08 Agency for Perfection

     149  

Section 10.09 No Reliance on any Agent’s Customer Identification Program

     149  

Section 10.10 No Third Party Beneficiaries

     150  

Section 10.11 No Fiduciary Relationship

     150  

Section 10.12 Reports; Confidentiality; Disclaimers

     150  

Section 10.13 Conduct of business by the Lenders and Agents

     151  

ARTICLE XI. GUARANTY

     151  

Section 11.01 Guaranty

     151  

Section 11.02 Guaranty Absolute

     152  

Section 11.03 Waiver

     153  

Section 11.04 Continuing Guaranty; Assignments

     153  

Section 11.05 Subrogation

     153  

ARTICLE XII. MISCELLANEOUS

     154  

Section 12.01 Notices, Etc.

     154  

Section 12.02 Amendments, Etc.

     157  

Section 12.03 No Waiver; Remedies, Etc.

     159  

 

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Section 12.04 Expenses; Taxes; Attorneys’ Fees

     159  

Section 12.05 Right of Set-off

     160  

Section 12.06 Severability

     161  

Section 12.07 Assignments and Participations

     161  

Section 12.08 Counterparts

     165  

Section 12.09 GOVERNING LAW

     165  

Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE

     165  

Section 12.11 WAIVER OF JURY TRIAL, ETC.

     166  

Section 12.12 [Reserved]

     166  

Section 12.13 No Party Deemed Drafter

     166  

Section 12.14 Reinstatement; Certain Payments

     166  

Section 12.15 [Intentionally Omitted]

     167  

Section 12.16 Indemnification; Limitation of Liability for Certain Damages

     167  

Section 12.17 Administrative Borrowers

     168  

Section 12.18 Records

     169  

Section 12.19 Binding Effect

     169  

Section 12.20 Interest

     169  

Section 12.21 Confidentiality

     170  

Section 12.22 Public Disclosure

     171  

Section 12.23 Integration

     171  

Section 12.24 USA PATRIOT Act

     171  

Section 12.25 Keepwell

     172  

 

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SCHEDULE AND EXHIBITS

 

Schedule 1.01(A)   Lenders and Lenders’ Commitments
Schedule 1.01(B)   Security Documents
Schedule 6.01(e)   Capitalization; Subsidiaries
Schedule 6.01(f)   Litigation; Commercial Tort Claims
Schedule 6.01(g)   Material Indebtedness
Schedule 6.01(i)   ERISA
Schedule 6.01(l)   Nature of Business
Schedule 6.01(o)   Real Property
Schedule 6.01(r)   Environmental Matters
Schedule 6.01(s)   Insurance
Schedule 6.01(v)   Bank Accounts
Schedule 6.01(w)   Intellectual Property
Schedule 6.01(x)   Material Contracts
Schedule 6.01(cc)   Name; Jurisdiction of Organization; Organizational ID Number;
  Chief Place of Business; Chief Executive Office; FEIN
Schedule 6.01(dd)   Collateral Locations
Schedule 6.01(ee)   Inventory Locations
Schedule 7.02(a)   Existing Liens
Schedule 7.02(b)   Existing Indebtedness
Schedule 7.02(e)   Existing Investments
Schedule 7.02(k)   Limitations on Dividends and Other Payment Restrictions
Schedule 8.01   Cash Management Accounts
Exhibit A   Form of Joinder Agreement
Exhibit B   Form of Assignment and Acceptance
Exhibit C   Form of Notice of Borrowing
Exhibit D   Form of LIBOR Notice
Exhibit E   Form of Borrowing Base Certificate
Exhibit F   Form of Letter of Credit Application

 

- iv -


FINANCING AGREEMENT

Financing Agreement, dated as of October 30, 2015 , by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as hereinafter defined) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” hereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages hereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” hereunder or otherwise guaranties all or any part of the Obligations (as hereinafter defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party hereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

RECITALS

Pursuant to the Acquisition Agreement (as hereinafter defined), the Buyer has agreed to acquire the Parent.

The Borrowers have asked the Lenders to extend credit consisting of (a) a Term Loan (as hereinafter defined) to be extended to the Borrowers in the aggregate principal amount of $175,000,000, and (b) a revolving credit facility extended to the Borrowers in an amount of up to $50,000,000, which will include a $3,000,000 subfacility for the issuance of letters of credit. The proceeds of the term loans and the loans made under the revolving credit facilities shall be used to finance a portion of the purchase price for the Funko Acquisition (as defined below), for working capital and other general corporate purposes of the Loan Parties, to refinance certain existing indebtedness, to pay fees and expenses related to this Agreement, and to fund a working capital adjustment in connection with the Funko Acquisition, if any. The letters of credit will be used for general working capital purposes. The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth.

In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS; CERTAIN TERMS

Section 1.01 Definitions . As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of such terms:

 

- 1 -


Account Debtor ” means each debtor, customer or obligor in any way obligated on or in connection with any Account Receivable.

Account Receivable ” means, with respect to any Person, any and all accounts (as that term is defined in the Uniform Commercial Code) and any and all rights of such Person to payment for goods sold and/or services rendered, including accounts, general intangibles and any and all such rights evidenced by chattel paper, instruments or documents, whether due or to become due and whether or not earned by performance, and whether now or hereafter acquired or arising in the future, and any proceeds arising therefrom or relating thereto.

Acquired Indebtedness ” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party in a Permitted Acquisition; provided that (x) such Indebtedness was in existence prior to the date of such Permitted Acquisition and was not incurred in connection with, or in contemplation of, such Permitted Acquisition and (y) such Indebtedness is not secured by any Liens on the assets of any Loan Party or any Subsidiary of any Loan Party except for Permitted Liens.

Acquisition ” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.

Acquisition Agreement ” means the Securities Purchase and Contribution Agreement, dated as of October 9, 2015 by and among (i) Funko Acquisition Holdings, L.L.C., a Delaware limited liability company, as the purchaser, (ii) Funko, LLC, a Washington limited liability company, as the company, (iii) Funko Holdings LLC, a Delaware limited liability company, as the parent, and (iv) Funko International, LLC, a Delaware limited liability company, Jon P. and Trishawn P. Kipp Children’s Trust, Brian Mariotti and Shannon Mariotti, a married couple resident in                                 , GLAD Funko Investments, Inc., a Delaware corporation, GAIN Funko Investments, Inc., a Delaware corporation, and each of the additional sellers identified on Exhibit A attached thereto, as amended or otherwise modified in a manner permitted hereunder.

Acquisition Assets ” means all of the property and assets (tangible and intangible) proposed to be purchased by the Buyer pursuant to the Acquisition Agreement.

Acquisition Documents ” means the Acquisition Agreement and all other operative agreements related thereto or executed in connection therewith.

Action ” has the meaning specified therefor in Section 12.12.

Administrative Agent ” has the meaning specified therefor in the preamble hereto.

Administrative Agent’s Account ” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders under this Agreement and the other Loan Documents.

Administrative Borrower ” has the meaning specified therefor in Section 12.17.

 

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Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party.

Agent ” has the meaning specified therefor in the preamble hereto.

Agent Advances ” has the meaning specified therefor in Section 10.08(a).

Agreement ” means this Financing Agreement, including all amendments, restatements, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.

Agreement Among Lenders ” means the Agreement Among Lenders, dated as of the date hereof, among the Revolving Loan Lenders, on the one hand, and the Term Loan Lenders, on the other hand, as such agreement may be amended, restated, supplemented or otherwise modified pursuant to the terms thereof.

Amendment No. 1 ” means Amendment No. 1 to Financing Agreement, dated as of September 8, 2016, by and among the Agents, the Lenders and the Loan Parties.

Amendment No. 1 Effective Date ” means the “Amendment Effective Date” as defined in Amendment No. 1.

“Amendment No. 3” means Amendment No. 3 to Financing Agreement, dated as of January 17, 2017, by and among the Agents, the Lenders and the Loan Parties.

“Amendment No. 3 Effective Date” means the “Amendment Effective Date” as defined in Amendment No. 3.

Anti-Terrorism Laws ” shall mean any Laws relating to, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time, including, without limitation, (i) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), as amended, and regulations promulgated thereunder, (ii) the Bank Secrecy Act, as amended, and regulations promulgated thereunder, (iii) the USA PATRIOT Act, as amended, and regulations promulgated thereunder, (iv) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”), (v) the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 and implementing regulations by the United States Department of the Treasury, (vi) any law prohibiting or directed against terrorist activities or the financing of terrorist activities ( e.g ., 18 U.S.C. §§ 2339A and 2339B), or (vii) any similar laws enacted in the United States or any other jurisdictions in which the parties to this agreement operate, as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto.

 

- 3 -


Applicable Prepayment Premium ” means, as of any date of determination, whether before or after an Event of Default or acceleration and to the extent applicable, (x) with respect to the Term Loan A and the Revolving Credit Commitments, an amount equal to (a) during the period of time from and after the Effective Date up to the date that is the first anniversary of the Effective Date, an amount equal to 2.00% times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loans Loan A on such date, (b) during the period of time after the date that is the first anniversary of the Effective Date up to and including the date that is the second anniversary of the Effective Date, an amount equal to 1.00% times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loans Loan A on such date, and (c) thereafter, zero, and (y) with respect to the Term Loan B, an amount equal to (a) during the period of time from and after the Amendment No. 3 Effective Date up to the date that is the first anniversary of the Amendment No. 3 Effective Date, an amount equal to 2.00% times the principal amount of any prepayment of the Term Loan B on such date, (b) during the period of time after the date that is the first anniversary of the Amendment No. 3 Effective Date up to and including the date that is the second anniversary of the Amendment No. 3 Effective Date, an amount equal to 1.00% times the principal amount of any prepayment of the Term Loan B on such date, and (c) thereafter, zero.

Assignment and Acceptance ” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Collateral Agent, in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto or such other form acceptable to the Collateral Agent.

Authorized Officer ” means, with respect to any Person, the chief executive officer, chief financial officer, president, vice president-controller, treasurer or vice president of such Person.

Availability ” means, as of any date of determination, the result of (a) the lesser of (i) the Borrowing Base (as determined pursuant to the most recently delivered Borrowing Base Certificate) and (ii) the Total Revolving Credit Commitment, minus (b) the sum of (i) the aggregate outstanding principal amount of all Revolving Loans plus (ii) all Letter of Credit Obligations plus (iii) all outstanding fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04 which have been invoiced to Borrower (to the extent required under Section 4.01) prior to the date on which the most recent Borrowing Base Certificate has been delivered but not yet paid, minus (c) all of the Loan Parties’ accounts payable for which ninety (90) days or more have elapsed from the applicable invoice due date (as determined pursuant to the most recently delivered Borrowing Base Certificate).

 

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Available Equity Proceeds ” means the cumulative net cash proceeds of any issuances of Qualified Equity Interests (other than Permitted Cure Stock) after the Effective Date, as such amount may be reduced to reflect application pursuant to clause (h) of the definition of Permitted Acquisition, clause (p) of the definition of Permitted Investments or clause (i) of the definition of Capital Expenditures.

Bank ” means PNC, its successors or any other bank designated by the Administrative Agent to the Administrative Borrower from time to time.

Bank Product Agreements ” means those certain cash management service agreements entered into from time to time between Borrowers, on the one hand, and an Agent or a Lender or its Affiliates, on the other hand, in connection with any of the Bank Products, including, without limitation, any Lender-Provided Hedge Agreement.

Bank Product Provider ” means any Agent or Lender or Affiliate thereof that provides Bank Products to any Loan Party.

Bank Product Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Administrative Agent or any Lender as a result of Administrative Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to such Person pursuant to the Bank Product Agreements. Notwithstanding any of the foregoing, Bank Product Obligations shall not include any Excluded Hedge Liabilities.

Bank Product Reserve ” means, as of any date of determination, the lesser of (i) $2,000,000 and (ii) the amount of reserves that the Administrative Agent has established (based upon the Administrative Agent’s reasonable determination of the credit exposure in respect of the then extant Bank Products) in respect of Bank Products then provided or outstanding; provided that, in order to qualify as a Bank Product Reserve, such reserve must be established on or substantially contemporaneous with the date that the applicable Bank Product is provided.

Bank Products ” means any service or facility extended to the Borrowers by any Lender or its Affiliates including: (i) credit cards, (ii) credit card processing services, (iii) debit cards and stored value cards, (iv) purchase cards and commercial cards, (v) ACH transactions, (vi) cash management and treasury management services and products, including without limitation controlled disbursement, accounts or services, lockboxes, automated clearinghouse transactions, overdrafts, interstate depository network services, or (vii) Lender-Provided Hedge Agreements and other foreign exchange or “FX” cash management products.

 

- 5 -


Bankruptcy Code ” means (i) the United States Bankruptcy Code (11 U.S.C. § 101, et seq .), as amended, and any successor statute and (ii) such other applicable rules, laws or statutes of any Government Authority or court of a jurisdiction outside of the United States of America relating to bankruptcy, insolvency, assignments for the benefit of creditors, formal or informal moratoria, compositions, or extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief, as amended and in effect from time to time, and any successor rule, law or statute.

Blocked Person ” has the meaning assigned to such term in Section 6.01(ii).

Board ” means the Board of Governors of the Federal Reserve System of the United States.

Board of Directors ” means, (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

Book Value ” means, with respect to any Inventory of any Person, the lower of (a) cost (as reflected in the general ledger of such Person before customary reserves established by such Person in good faith and in accordance with GAAP) and (b) market value, in each case, determined in accordance with GAAP calculated on a first-in first-out basis.

Borrower ” has the meaning specified therefor in the preamble hereto.

Borrowing Base ” means, at any time, an amount equal to (1) the lesser of (A) the then-existing Maximum Revolving Loan Amount and (B) the sum of (i) the lesser of (x) seventy percent (70%) of the Book Value of Eligible Inventory of the Borrowers at such time and (y) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Inventory of the Borrowers at such time, plus (ii) the lesser of (x) ten percent (10%) of the then-existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, plus (iii) eighty-five percent (85%) of the Net Amount of Eligible Domestic Accounts Receivable of the Borrowers at such time, plus (iv) the lesser of (x) twenty percent (20%) of the then-existing Maximum Revolving Loan Amount and (y) eighty-five percent (85%) of the Net Amount of Eligible Foreign Accounts Receivable of the Borrower at such time, plus (v) the lesser of (x) thirty percent (30%) of the then existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible Special Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Special Inventory of the Borrowers at such time, minus (2) the aggregate amount of Reserves established by the Administrative Agent at such time.

 

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Borrowing Base Certificate ” means a certificate signed by an Authorized Officer of the Administrative Borrower and setting forth the calculation of the Borrowing Base in compliance with Section 7.01(a)(vi), substantially in the form of Exhibit E .

Business Day ” means (a) for all purposes other than as described in clause (b) below, any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in Pittsburgh, Pennsylvania or New York City, (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, LIBOR Rate Loans, any day that is a Business Day described in clause (a) above and on which dealings in Dollars may be carried on in the interbank eurodollar markets in New York City and London.

Buyer ” has the meaning specified therefor in the preamble hereto.

Capital Expenditures ” means, with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed and including all Capitalized Lease Obligations paid or payable during such period; provided , however , that the following shall not constitute Capital Expenditures: (i) expenditures to the extent that they are financed with the Available Equity Proceeds, (ii) expenditures to the extent that they are made with the proceeds of Reinvestment Eligible Funds, (iii) expenditures to the extent that they are made by the Ultimate Parent or any of its Subsidiaries to effect leasehold improvements to any property leased by such Person as lessee, to the extent that such expenses have been reimbursed in cash by the landlord that is not a Loan Party, (iv) expenditures to the extent that they are actually paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other Person (whether before, during or after such period), and (v) property, plant and equipment taken in settlement of accounts.

Capitalized Lease ” means, with respect to any Person, any lease of real or personal property by such Person as lessee which is (a) required under GAAP to be capitalized on the balance sheet of such Person or (b) a transaction of a type commonly known as a “synthetic lease” ( i.e. , a lease transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

Capitalized Lease Obligations ” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

Cash Collateralize ” means to deliver to the Administrative Agent an amount in the applicable currency in which any Letter of Credit is denominated (whether in cash or in the form of a backstop letter of credit in form and substance reasonably satisfactory to, and issued by a U.S. commercial bank reasonably acceptable to, the Administrative Agent in its Permitted

 

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Discretion) equal to 105% of the sum of (a) the maximum aggregate amount available for drawing under any outstanding Letter of Credit plus the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit which have not been converted to Revolving Loans plus (b) the amount of unpaid Letter of Credit Fees then accrued. Derivatives of such term have corresponding meanings. Without limiting the generality of any other grant of Liens in any Loan Document, each Loan Party hereby grants to Administrative Agent a continuing and first priority security interest in all Cash Collateral delivered to Administrative Agent to secure all Letter of Credit Obligations and/or Post-Term Letter of Credit Obligations, as applicable.

Cash Equivalents ” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within six months from the date of acquisition thereof; and (g) in the case of Investments by a foreign Subsidiary, investments/instruments corresponding to and with equivalent quality to investments/instruments described in the foregoing clauses (a) through (f) available in and/or guaranteed by the equivalent Governmental Authorities in the country in which such foreign Subsidiary is located.

Cash Management Accounts ” means the bank accounts of each Loan Party (other than (a) accounts specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees, (b) any account over which the grant of a Cash Management Agreement is legally prohibited or which constitute cash collateral in respect of a Permitted Lien and (c) any account with an average daily balance during any month no greater than $50,000 (provided that the aggregate average daily balance during any month in all such accounts is less than $200,000).

Cash Management Agreement ” means a deposit account control agreement, in form and substance reasonably satisfactory to the Agents, by and among a Loan Party, the Collateral Agent and a Cash Management Bank with respect to each Cash Management Account.

Cash Management Bank ” has the meaning specified therefor in Section 8.01(a).

Cerberus ” has the meaning specified therefor in the preamble hereto.

 

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CEA ” means the Commodity Exchange Act (7 U.S.C.§1 et seq.), as amended from time to time, and any successor statute.

CFC ” means a controlled foreign corporation (as that term is defined in the IRC).

CFTC ” means the Commodity Futures Trading Commission.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith (whether or not having the force of law) and (ii) all requests, rules, regulations, guidelines , interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each case, pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued, promulgated or implemented.

Change of Control ” means each occurrence of any of the following:

(a) prior to the occurrence of either (i) the first public offering by Ultimate Parent (or by its direct or indirect parent company) of the Equity Interests in Ultimate Parent (or in its direct or indirect parent company, as the case may be) after the Effective Date pursuant to a registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act (a “Qualified Initial Public Offering”) or (ii) a private placement by Ultimate Parent (or by its direct or indirect parent company) of the Equity Interests in Ultimate Parent (or in its direct or indirect parent company, as the case may be) (a “Private Placement”), the Permitted Holders cease beneficially and of record to own and control, directly or indirectly, at least 50.1% on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of the Ultimate Parent;

(b) [Intentionally Omitted];

(b) after the occurrence of either of a Qualified Initial Public Offering or a Private Placement, (i) the Permitted Holders cease beneficially and of record to own and control, directly or indirectly, at least 25% on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of the Ultimate Parent or (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Permitted Holders is or shall at any time become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than the percentage (measured on a fully diluted basis) of the voting power of the Equity Interests of the Ultimate Parent then owned, directly or indirectly, by the Permitted Holders;

 

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(c) during any period of two consecutive years following the Effective Date, individuals who at the beginning of such period constituted the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) (together with any new directors whose election by such Board of Directors or whose nomination for election by the members of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) was approved by a vote of at least a majority the directors or managers of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) then still in office who were either directors or managers at the beginning of such period, or whose election or nomination for election was previously approved by the Board of Directors) cease for any reason to constitute a majority of the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company);

(d) the Ultimate Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party (other than in connection with any transaction permitted pursuant to Section 7.02(c)), free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens not arising under the Loan Documents that are consensual or contractual Liens); or

(e) a “Change of Control” (or any comparable term or provision) under or with respect to any Disqualified Equity Interests or the Subordinated Indebtedness of the Ultimate Parent or any of its Subsidiaries.

Closing Fee ” has the meaning specified therefor in Section 2.06(a).

Collateral ” means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.

Collateral Agent ” has the meaning specified therefor in the preamble hereto.

Collateral Assignment ” means the Collateral Assignment of Acquisition Documents, dated as of the date hereof, and in form and substance reasonably satisfactory to the Collateral Agent, made by the Buyer in favor of the Collateral Agent.

Collections ” means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds).

Commitments ” means, with respect to each Lender, such Lender’s Revolving Credit Commitment and Term Loan B Commitment.

Consolidated Adjusted Working Capital ” means at any date the excess of (i) Consolidated Current Assets (excluding (a) deferred tax assets and (b) cash and Cash Equivalents classified as such in accordance with GAAP) over (ii) Consolidated Current Liabilities (excluding (a) deferred tax liabilities and (b) the current portion of any Consolidated Funded Indebtedness); provided however that Consolidated Adjusted Working Capital shall be calculated without giving effect to any Consolidated Current Assets or Consolidated Current Liabilities acquired or assumed in any Permitted Acquisition consummated during the applicable period to the extent financed with Indebtedness, Equity Issuances of Parent, or Reinvestment Eligible Funds.

 

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Consolidated Cash Interest Expense ” means, for any period, Consolidated Net Interest Expense that has been paid or is payable in cash during such period, other than (without duplication and to the extent, but only to the extent, included in the determination of Consolidated Net Interest Expense for such period in accordance with GAAP and paid in cash for such period): (i) amortization of debt discount and debt issuance fees, (ii) any fees (including underwriting fees) and expenses paid in connection with the consummation of the Acquisition or the consummation or proposed consummation of any Permitted Acquisition), (iii) any payments made to obtain Hedging Agreements and (iv) any agent or collateral monitoring fees paid or required to be paid pursuant to any Loan Document.

Consolidated Current Assets ” means at any date the consolidated current assets of Ultimate Parent and its Subsidiaries determined as of such date.

Consolidated Current Liabilities ” means at any date, without duplication, (i) the consolidated current liabilities of Ultimate Parent and its Subsidiaries plus (ii) all guaranty obligations of Ultimate Parent or any consolidated Subsidiary of Ultimate Parent in respect of the current liabilities of any Person (other than Ultimate Parent or a consolidated Subsidiary of Ultimate Parent), determined as of such date.

Consolidated EBITDA ” means, with respect to any Person for any period, (a) Consolidated Net Income plus (b) without duplication, the sum of the following amounts to the extent deducted in determining Consolidated Net Income of such Person and its Subsidiaries for such period: (i) Consolidated Net Interest Expense, (ii) income tax expense minus any income tax benefit recorded (but only to the extent such result is a positive number), (iii) depreciation expense, (iv) amortization expense, (v) Permitted Management Fees paid or accrued by such Person or its Subsidiaries to any of its Affiliates during such period, (vi) fees and expenses for third party professionals, agents and advisors and other transaction costs and expenses incurred in connection with the closing of the Acquisition, the Loan Documents and Permitted Acquisitions (whether or not consummated) after the Effective Date (including (A) in connection with the closing of the Acquisition, fees payable to the Permitted Holders and their Affiliates in an aggregate amount not to exceed $11,700,000, and consent fees payable to third party licensors and lessors in an aggregate amount not to exceed $8,500,000; provided that the amount of such fees and expenses are actually incurred within 180 days of the Effective Date and (B) any other Permitted Acquisitions (whether or not consummated) and any initial public offering (whether or not consummated) after the Effective Date to the extent the aggregate amount of such fees and expenses under this subclause (B) does not exceed $2,000,000 in any Fiscal Year), (vii) non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and similar arrangements, (viii) all other non-cash, non-recurring charges (other than any such non-cash expenses or charges that represent an accrual or reserve for future cash expenses or charges or a write-down or write-off of current assets (other than as a result of the application of purchase accounting)), including, without limitation, non-cash exchange, translation, or performance losses relating to any hedging transactions or foreign currency

 

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fluctuation, non-cash charges in respect of earnouts, non-cash mark-to-market expenses relating to any Hedging Agreement permitted hereunder, non-cash stock or equity compensation and non-cash charges associated with any write-off of deferred amortization costs, (ix) non-recurring cash charges resulting from severance, consulting, advisory and other similar transition expenses, stay or sign on bonuses, retirement of debt, restructuring, consolidation, transition integration and other similar adjustments made as a result of Permitted Acquisitions and other Permitted Investments (including facility start-up costs and pursuit and broken deal costs in respect of acquisitions and investments); provided, that the amounts added back pursuant to this clause (ix) and clause (x) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (x) pro forma cost savings and synergies (net of actual amounts realized) in connection with any Permitted Acquisition or other Permitted Investments that are identifiable, factually supported and validated by an independent third party financial analysis and expected to occur within the next twelve (12) months based on specifically identifiable actions which have been taken or will be taken; provided, that the amounts added back pursuant to this clause (x) and clause (ix) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (xi) any charges associated with the Funko Earnout or the Underground Toys Earnout , (xii) to the extent not included in Consolidated Net Income, cash proceeds of business interruption insurance received during such period and the proceeds of any indemnification payments received from third parties for items to the extent such items reduced Consolidated Net Income, (xiii) Pro Forma EBITDA from Permitted Acquisitions supported by a quality of earnings report or a certified analysis of the CFO of the Borrower, in either case the results of which shall be reasonably satisfactory to the Collateral Agent, (xiv) expenses in respect of compensation (including payroll taxes) paid to any member of management in lieu of not exercising options in respect of equity in the Borrower (or any direct or indirect parent of the Borrower) to the extent such compensation is limited to such member’s pro rata share of the distribution distributions to be funded with the proceeds of the First Amendment Term Loan or the Term Loan B , (xv) non-cash expenses due to a step-up of inventory value required as a result of the Acquisition and any Permitted Acquisition and (xvi) fees in connection with obtaining and the maintenance of ratings by Standard & Poor’s and Moody’s. Notwithstanding the foregoing, for purposes of calculating the Senior Leverage Ratio only, (x) for the fiscal quarter ended June 30, 2015, Consolidated EBITDA shall be equal to $16,242,000, and (y) for the fiscal quarter ended September 30, 2015, Consolidated EBITDA shall be equal to $24,019,000.

Consolidated Funded Indebtedness ” means, with respect to any Person at any date, all Indebtedness (other than Indebtedness of the type described in clause (g) of the definition of Indebtedness, any Indebtedness that is cash collateralized, any obligations in relation to Funko Preferred Earnout Equity and any contingent earnouts and similar obligations to the extent not due and payable, including the Underground Toys Earnout and the Funko Earnouts, except in the case of any Funko Earnout that is due and payable, in which case the amount of such obligation that is expected to be funded through an Equity Issuance by Ultimate Parent (including the issuance of the Funko Earnout Preferred Equity) shall be excluded from Consolidated Funded Indebtedness to the extent such amount is supported by a written notification from ACON that a capital call was made for such amount (other than in connection with the issuance of Funko Earnout Preferred Equity)) of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, including, in any event, with

 

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respect to the Ultimate Parent and its Subsidiaries, the Revolving Loans, the Term Loans, the Letter of Credit Obligations and all Capitalized Lease Obligations of the Ultimate Parent and its Subsidiaries, provided that the aggregate outstanding amount of all Revolving Loan Obligations and Letter of Credit Obligations as of such date shall be calculated on such date based on the average daily balance thereof during the applicable trailing twelve month test period ending on such date.

Consolidated Net Income ” means, with respect to any Person for any period, the net income (loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis and in accordance with GAAP, but excluding from the determination of Consolidated Net Income (without duplication) (a) any extraordinary or non-recurring gains or losses or gains or losses from Dispositions, (b) non-cash restructuring charges and (c) effects of discontinued operations.

Consolidated Net Interest Expense ” means, with respect to any Person for any period, the total interest expense of such Person for such period, whether paid or accrued and whether or not capitalized including, without limitation, any Installment Waiver Fees, amortization of debt issuance costs and original issue discount, interest capitalized during construction, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments under Capitalized Leases (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs (included in interest expense) in respect of Hedging Agreements, in each case determined (i) on a consolidated basis for such period, net of all interest income and (ii) net of amounts paid or payable and/or received or receivable under Hedging Agreements in respect of interest rates.

Contingent Obligation ” means, with respect to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, capitalized leases or dividends (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

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Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Covered Entity ” means (a) each Borrower, each of Borrower’s Subsidiaries, all Guarantors and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

Current Value ” has the meaning specified therefor in Section 7.01(o).

Daily LIBOR Rate ” means, for any day, the rate per annum determined by the Administrative Agent by dividing (i) the Published Rate by (ii) a number equal to 1.00 minus the Reserve Percentage.

Debtor Relief Law ” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.

Default ” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

Defaulting Lender ” means, subject to Section 4.04(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has notified the Administrative Borrower, the Administrative Agent or any L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the

 

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Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender, subject to Section 4.04(d), upon delivery of written notice of such determination to the Administrative Borrower, each L/C Issuer and each Lender.

Dilution ” means a percentage, reasonably determined by Administrative Agent based upon the experience of the immediately prior ninety (90) days that is the result of dividing the amount of (a) discounts, advertising allowances, credits, or other similar items that are granted in the ordinary course of business with respect to the Borrowers’ Accounts Receivable during such period, by (b) the Borrowers’ billings with respect to Accounts Receivable during such period.

Dilution Reserve ” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts Receivable of the Borrowers, by one (1) percentage point for each percentage point by which Dilution is in excess of five percent (5.0%); provided that the Dilution Reserve shall be calculated without regard to co-op advertising expenses and discounts for advertising expenses that are otherwise taken into account in determining the net amount of Eligible Accounts Receivable and/or other Reserves.

Disposition ” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person, excluding any sales of Inventory in the ordinary course of business.

Disqualified Equity Interests ” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date which is 91 days after the Final Maturity Date (except as a result of a change of control or asset sale so long as any rights of the

 

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holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Interests referred to in clause (a) above, in each case at any time prior to the date which is 91 days after the Final Maturity Date at the option of any Person other than a Loan Party, (c) contains any repurchase obligation that may come into effect either (i) prior to Payment in Full of all Obligations or (ii) prior to the date that is 91 days after the Final Maturity Date or (d) provides for scheduled payments or the payment of cash dividends or distributions prior to the date that is 91 days after the Final Maturity Date.

Document ” shall have the meaning given to the term “document” in the Uniform Commercial Code.

Dollar ,” “ Dollars ” and the symbol “ $ ” each means lawful money of the United States of America.

Dollar Equivalent ” means at any time (i) as to any amount denominated in Dollars, the amount thereof at such time, and (ii) as to any amount denominated in any other currency, the equivalent amount in Dollars calculated by the Administrative Agent in good faith at such time using the Exchange Rate in effect on the Business Day of determination.

Domestic In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location inside the United States to any location of a Loan Party within the United States.

Drawing Date ” has the meaning specified therefor in Section 3.04(b).

Effective Date ” has the meaning specified therefor in Section 5.01.

Effectiveness Date ” means the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.

Eligibility Date ” means, with respect to each Borrower and Guarantor and each Swap, the date on which this Agreement or any other Loan Document becomes effective with respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the Effectiveness Date of such Swap if this Agreement or any other Loan Document is then in effect with respect to such Borrower or Guarantor, and otherwise it shall be the Effectiveness Date of this Agreement and/or such other Loan Document(s) to which such Borrower or Guarantor is a party)

Eligible Accounts Receivable ” means the Accounts Receivable of a Borrower that, meet all of the following specifications:

(a) delivery of the merchandise or the rendition of the services has been completed with respect to such Account Receivable;

 

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(b) no return, rejection, repossession or dispute has occurred with respect to such Account Receivable, the Account Debtor has not asserted any setoff, defense or counterclaim with respect to such Account Receivable, and there has not occurred any extension of the time for payment with respect to such Account Receivable without the consent of the Administrative Agent, provided that, in the case of any dispute, setoff, defense or counterclaim with respect to an Account Receivable, the portion of such Account Receivable not subject to such dispute, setoff, defense or counterclaim will not be ineligible solely by reason of this clause (b);

(c) such Account Receivable is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agent and the Secured Parties and is lawfully owned by a Borrower free and clear of any Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in conformity in all material respects with all representations and warranties made by a Borrower to the Agents and the Lenders with respect thereto in the Loan Documents, and such Borrower has the right to grant Liens on such Account Receivable;

(d) such Account Receivable (i) is not evidenced by a promissory note, chattel paper, bill of sale or any other instrument or other document in respect of which the perfection or priority of the security interest of the Collateral Agent in such document would be enhanced or ensured by possession under applicable law unless the original of such document is in the possession of the Collateral Agent and contains all necessary endorsements in favor of the Collateral Agent, and (ii) is unconditionally payable in Dollars or, in case of Account Debtors located in Canada, Dollars or Canadian Dollars (converting such Canadian Account Receivable into the Dollar Equivalent thereof as of the date of the delivery of each applicable Borrowing Base Certificate);

(e) if such Account Receivable (x) has selling terms of net 30 days or less, then no more than 60 days have elapsed from the invoice due date or no more than 90 days have elapsed from the invoice date and (y) has selling terms of greater than net 30 days, then no more than 60 days have elapsed from the invoice due date or no more than 120 days have elapsed from the invoice date;

(f) such Account Receivable is not due from an Affiliate of a Borrower;

(g) such Account Receivable does not constitute an obligation of the federal government of the United States (or any other Untied States federal Governmental Authority) which is either (x) eligible for assignment under the Federal Assignment of Claims Act (unless, if applicable, all steps required by the Administrative Agent in connection therewith, including notice to the United States Government under the Federal Assignment of Claims Act have been duly taken in a manner satisfactory to the Administrative Agent) or (y) otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section 9-406 of the Uniform Commercial Code (unless all necessary steps have been taken to comply with such restrictions on assignment), except for any such Accounts Receivable the net invoice amount of which does not exceed, individually as to any such Account Receivable or in the aggregate as to all such Accounts Receivable, $1,000,000 at any one time;

(h) [intentionally omitted];

 

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(i) the Account Debtor with respect to such Account Receivable is not also a supplier to or creditor of a Borrower, unless such Account Debtor has executed a no-offset letter reasonably satisfactory to the Administrative Agent;

(j) with respect to the Account Debtor for such Account Receivable, not more than 50% of the aggregate amount of all Accounts Receivable of such Account Debtor are excluded on the basis of the aging requirements set forth in clause (e) above;

(k) the sale to the Account Debtor is not on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment or any other repurchase or return basis or is evidenced by chattel paper,

(l) [intentionally omitted];

(m) the Account Debtor on the Account Receivable is not a Blocked Person;

(n) the Account Debtor with respect to such Account Receivable (i) has not filed a petition for bankruptcy or any other relief under any Debtor Relief Law, (ii) has not failed, suspended business operations, become insolvent or called a meeting of its creditors or otherwise commenced action under any assignment for the benefit of creditor statute, (iii) has not had or suffered to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs or (iv) in the case of an Account Debtor who is an individual, is not an employee of a Borrower or any of its Affiliates and has not died or been declared incompetent; and

(o) the Administrative Agent is, and continues to be, satisfied with the credit standing of the Account Debtor in relation to the amount of credit extended, either with respect to such Account Debtor overall and/or specifically with respect to any foreign offices of such Account Debtor, and the Administrative Agent believes, in its Permitted Discretion, that the prospect of collection of such Account Receivable is not impaired for any reason.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Account Receivable at any time ceases to be an Eligible Account Receivable (other than by means of clause (e) or (j) above) and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Account Receivable from the calculation of the Borrowing Base, (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Accounts Receivable acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Accounts Receivable for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower.

Eligible Contract Participant ” means an “eligible contract participant” as defined in the CEA and regulations thereunder.

 

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Eligible Customs Broker ” shall mean Radiant Customs Services Inc. or another customs broker that has its principal assets and principal place of business in the United States and which is acceptable to Administrative Agent in its Permitted Discretion and with which Collateral Agent has entered into a freight forwarder agreement, in form and substance acceptable to Administrative Agent in its Permitted Discretion.

Eligible Domestic Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located in Canada or the United States.

Eligible Foreign Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located outside of Canada or the United States.

Eligible Domestic In-Transit Inventory ” shall mean Inventory that would be Eligible Inventory but for the fact that it is Domestic In-Transit Inventory, but only if: (a) such Domestic In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has occurred and title has passed to such Borrower; (b) no default exists under any agreement in effect between the vendor of such Inventory and such Borrower that would permit such vendor under any applicable Law (including the Uniform Commercial Code) to divert, reclaim, reroute, or stop shipment of such Inventory; and (c) such Domestic In-Transit Inventory is fully insured in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent in its Permitted Discretion and in respect of which Collateral Agent has been named as lender loss payee.

Eligible Foreign In-Transit Inventory ” shall mean raw materials and finished goods Inventory that would be Eligible Inventory but for the fact that it is Foreign In-Transit Inventory, but only if: (a) such Foreign In-Transit Inventory is the subject of a Negotiable Document that designates Collateral Agent as the consignee; (b) such Foreign In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has occurred and title has passed to such Borrower; (c) Administrative Agent has received assurances satisfactory to it that all of the original Documents evidencing such Foreign In-Transit Inventory (all of which Documents shall be Negotiable Documents) have been issued by the applicable carrier and have been forwarded to an Eligible Customs Broker (and, if such Documents are not actually received by an Eligible Customs Broker within ten (10) days after the sending thereof, such Foreign In-Transit Inventory shall thereupon cease to be Eligible Foreign In-Transit Inventory), or, if required by Administrative Agent in the exercise of its Permitted Discretion, all of such original Documents are in the possession, in the United States, of Administrative Agent or an Eligible Customs Broker (as specified by Administrative Agent); (d) [reserved]; (e) such Foreign In-Transit Inventory is fully insured by marine cargo or other similar insurance, in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent and in respect of which Collateral Agent has been named as lender loss payee; and (f) Agents have received an executed freight forwarder agreement with respect to such Inventory from an Eligible Customs Broker; provided that, notwithstanding anything to the contrary provided for in the foregoing, during the period of the first 90 days after the Effective Date, no Foreign In-Transit Inventory shall be excluded from Eligible Foreign In-Transit Inventory due to the fact that the applicable customs broker has not yet become an Eligible Customs Broker by entering

 

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into an acceptable freight forwarder agreement with Collateral Agent that is acceptable to Administrative Agent; and also provided further that, notwithstanding anything to the contrary contained in this definition, Administrative Agent may from time to time, acting in its Permitted Discretion, treat Foreign In-Transit Inventory that otherwise meets the requirements of this definition as Eligible Foreign In-Transit Inventory regardless of the fact that such Foreign In-Transit Inventory is not the subject of Negotiable Documents and that therefore no such Negotiable Documents have been issued or delivered to the applicable Eligible Customs Broker with respect to such Foreign In-Transit Inventory, but only if and so long as Administrative Agent is satisfied in its Permitted Discretion that conducting such in-transit Inventory transactions without the issuance of Negotiable Documents (x) is in the ordinary course of business of both Borrowers and the applicable Eligible Customs Broker and (y) will not jeopardize the perfection or priority of Collateral Agent’s Lien in the applicable Foreign In-Transit Inventory.

Eligible In-Transit Inventory ” means all Eligible Domestic In-Transit Inventory and Eligible Foreign In-Transit Inventory.

Eligible Inventory ” means all Inventory of a Borrower that meets all of the following specifications:

(a) such Inventory is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and is lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in full conformity with all representations and warranties made by a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents;

(b) such Inventory is not held on consignment and may be lawfully sold;

(c) a Borrower has the right to grant Liens on such Inventory;

(d) such Inventory arose or was acquired in the ordinary course of the business of a Borrower and does not represent damaged or unsalable goods;

(e) no Account Receivable or document of title has been created or issued by Borrowers with respect to such Inventory, and such Inventory (excluding In-Transit Inventory) is not subject to any document of title;

(f) subject to clause (j) below, such Inventory is located in one of the locations in the continental United States listed on Schedule 6.01(ee) or such other locations as notified to the Administrative Agent in writing from time to time;

(g) if such Inventory consists of finished goods Inventory sold under a licensed trademark or if such Inventory contains or uses a medium subject to a copyright (i) the Collateral Agent shall have entered into a waiver letter, in form and substance reasonably satisfactory to the Administrative Agent, with the licensor with respect to the rights of the Collateral Agent to use the licensed trademark or copyright to sell or otherwise dispose of such Inventory or (ii) the Administrative Agent shall otherwise be satisfied, in its Permitted Discretion (it being

 

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understood and agreed that such discretion shall be exercised in a manner that is consistent with the methodology applied in determining Eligible Inventory on the Effective Date), that the Collateral Agent has rights to sell or dispose of such Inventory and such Inventory could be liquidated without assistance or interference from, or the payment of money (other than the payment of royalties and similar fees payable by the licensee connection with such sale or disposition) to, such third party (it being understood that the following aspects of a license or similar agreement shall not result in any related Inventory failing to satisfy this clause (g): any restrictions applicable to dispositions by the licensee due to the effect of any license termination provisions on the ability of the licensee to sell or dispose of such inventory that do not otherwise impose more burdensome obligations on the Collateral Agent in relation to dispositions);

(h) the Inventory is not work-in-process, supplies (other than raw materials used in the manufacture of Inventory) or packaging;

(i) subject to clause (j) below, such Inventory is located on real property owned or leased by a Loan Party or in a contract warehouse or located with a vendor (not including any consigned Inventory of any Borrower held by such vendor as consignee, which shall not be Eligible Inventory) or processor, in each such case at a location listed on Schedule 6.01(dd) or Schedule 6.01(ee) or a location of which Administrative Agent has received notice under Section 7.01(a)(v) (without regard to any exceptions to location reporting requirements thereunder), and unless such location is real property owned by a Loan Party, (1) either (x) the owner, lessor, warehouseman, vendor, processor or other bailee or third party, as the case may be shall have (within 90 days of the Effective Date, or such later date as may be permitted by the Administrative Agent in its sole discretion) executed and delivered a written subordination, waiver or access agreement in form and substance reasonably satisfactory to the Collateral Agent, or (y) the Administrative Agent has instituted a Reserve with respect to such location (subject to the provisions of Section 7.01(m)), and (2) it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises; and

(j) the Inventory is not In-Transit Inventory.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Inventory at any time ceases to be Eligible Inventory or Eligible In-Transit Inventory, and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Inventory from the calculation of the Borrowing Base (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Inventory acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Inventory or Eligible In-Transit Inventory for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower.

Eligible Special Inventory ” means any Inventory of the Borrower that does not constitute Eligible Inventory or Eligible In-Transit Inventory solely as a result of restrictions or requirements contained in any license or similar agreement relating to such Inventory where the effect of such restrictions or requirements is to cause the requirements of clauses (a), (c) or (g) of the definition of Eligible Inventory to not be satisfied.

 

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Employee Plan ” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was maintained at any time during the six (6) calendar years preceding the date of any borrowing hereunder) for employees of any Loan Party or any of its Subsidiaries.

Environmental Actions ” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving violations of Environmental Laws or Releases of Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Loan Party or any of its Subsidiaries or any predecessor in interest; (b) from adjoining properties or businesses; or (c) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.

Environmental Laws ” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq .), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq .), the Federal Clean Water Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), as such laws may be amended or otherwise modified from time to time, and any other present or future federal, state, local or foreign statute, ordinance, rule, regulation, order, judgment, decree, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other government restrictions relating to the protection of the environment or the Release, deposit or migration of any Hazardous Materials into the environment.

Environmental Liabilities and Costs ” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any environmental condition or a Release of Hazardous Materials from or onto (i) any property presently or formerly owned by any Loan Party or any of its Subsidiaries or (ii) any facility which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries.

Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

Equipment ” means equipment (as that term is defined in the Uniform Commercial Code), and includes machinery, machine tools, motors, furniture, furnishings, vehicles (including motor vehicles), computer hardware, tools, parts, and goods (other than consumer goods, farm products, Inventory or fixtures), wherever located, including all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing.

 

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Equity Interest ” means (a) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (b) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

Equity Issuance ” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by Ultimate Parent of any cash capital contributions.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

ERISA Affiliate ” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

Event of Default ” means any of the events set forth in Section 9.01.

Excess Cash Flow ” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, plus (b) proceeds from any Extraordinary Receipts received during such period to the extent not included in the calculation of Consolidated EBITDA, plus (c) the decrease, if any, in Consolidated Adjusted Working Capital during such period, less (d) the increase, if any, in Consolidated Adjusted Working Capital during such period, less (e) the sum of (i) all scheduled cash principal payments, including any make-whole, prepayment premiums or call premiums not otherwise included pursuant to clause (ii) below, of such Person or any of its Subsidiaries during such period (but, in the case of a revolving credit facility, only to the extent that the commitment thereunder is permanently reduced by the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period, (iii) the cash portion of Capital Expenditures made by such Person and its Subsidiaries during such period (excluding Capital Expenditures to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes and tax distributions paid in cash by such Person and its Subsidiaries for such period, (vi) Permitted Management Fees described in clause (v) of the definition of Consolidated EBITDA that are paid in cash during such period to the extent such payments are permitted, (vii) (A) amounts added back to Consolidated EBITDA for such period pursuant to clauses (vi), (ix), (x), (xi), (xiii) and (xvi) of the definition of “Consolidated EBITDA” and (B) any portion of Pro Forma EBITDA added back to Consolidated EBITDA for

 

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such period pursuant to clause (xiii) of the definition of “Consolidated EBITDA” that is attributable to periods prior to the consummation of the corresponding Permitted Acquisition and (viii) cash payments during such period that were paid in respect of Permitted Acquisitions, the Underground Toys Earnout, the Funko Earnout, the Funko Earnout Preferred Equity or Permitted Investments pursuant to clause (p) of the definition thereof, in each case, to the extent not financed through the incurrence of Indebtedness (other than Indebtedness constituting a Revolver Credit Extension) or through an Equity Issuance.

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Exchange Rate ” means the prevailing spot rate of exchange published by Reuters (or, if such rate is not available from Reuters, another similar publicly available source as Administrative Agent may reasonably select) for the purpose of conversion of one currency to another, at or around 11:00 a.m. New York City time, on the date on which any such conversion of currency, or calculation of the Dollar Equivalent of any amount in any non-Dollar currency (or similar calculation of the foreign currency equivalent of any amount in Dollars) is to be made under this Agreement, provided that, notwithstanding the foregoing, in the context of any actual conversion by any Agent or Lender of any funds received by such Agent or Lender (including any collections on any Accounts Receivable received by any Agent of Lender) from one currency to another for the purpose of applying such funds to the Obligations, “Exchange Rate” means the spot-buying or spot-selling rate (as the case may be) rate of exchange at which such Agent or Lender is actually able to exchange the one currency for the other in the exercise of its ordinary business practices regarding foreign currency exchange.

Exchange Risk Reserve ” means, with respect to each Revolving Loan advanced or Letter of Credit issued in one currency in reliance on the value of Collateral denominated in another currency, an amount determined from time to time based on the Dollar Equivalent of the outstanding principal amount of such Revolving Loan or the Maximum Undrawn Amount of such Letter of Credit (in each case, to the extent such amount relies on the value of Collateral denominated in another currency) multiplied by the currency volatility index of the currency in which such Revolving Loan is advances or such Letter of Credit is issued as compared to the currency in which the applicable Collateral is denominated (as such currency volatility index is calculated and determined by Administrative Agent in the ordinary course of its business from time to time).

Excluded Foreign Subsidiary ” means any subsidiary of the Ultimate Parent (i) that is a “controlled foreign corporation” as defined in the Internal Revenue Code, (ii) all or substantially all of the assets of which consist of stock of one or more subsidiaries described in clause (i) above, in each case that has not guaranteed or pledged any of its assets or suffered a pledge of more than 65% of its voting stock to secure, directly or indirectly, any indebtedness of the Loan Parties or (iii) any direct or indirect domestic subsidiary of a direct or indirect foreign subsidiary of the Ultimate Parent (and any direct or indirect domestic subsidiary that is a disregarded entity for U.S. federal income tax purposes if substantially all of its assets consist of the equity or indebtedness of one or more direct or indirect foreign subsidiaries).

 

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Excluded Hedge Liability or Liabilities ” means, with respect to each Borrower and Guarantor, each of its Swap Obligations if, and only to the extent that, all or any portion of this Agreement or any Other Document that relates to such Swap Obligation is or becomes illegal under the CEA, or any rule, regulation or order of the CFTC, solely by virtue of such Borrower’s and/or Guarantor’s failure to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap. Notwithstanding anything to the contrary contained in the foregoing or in any other provision of this Agreement or any Other Document, the foregoing is subject to the following provisos: (a) if a Swap Obligation arises under a master agreement governing more than one Swap, this definition shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guaranty or security interest is or becomes illegal under the CEA, or any rule, regulations or order of the CFTC, solely as a result of the failure by such Borrower or Guarantor for any reason to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap; (b) if a guarantee of a Swap Obligation would cause such obligation to be an Excluded Hedge Liability but the grant of a security interest would not cause such obligation to be an Excluded Hedge Liability, such Swap Obligation shall constitute an Excluded Hedge Liability for purposes of the guaranty but not for purposes of the grant of the security interest; and (c) if there is more than one Borrower or Guarantor executing this Agreement or the Other Documents and a Swap Obligation would be an Excluded Hedge Liability with respect to one or more of such Persons, but not all of them, the definition of Excluded Hedge Liability or Liabilities with respect to each such Person shall only be deemed applicable to (i) the particular Swap Obligations that constitute Excluded Hedge Liabilities with respect to such Person, and (ii) the particular Person with respect to which such Swap Obligations constitute Excluded Hedge Liabilities.

Excluded Subsidiary ” means any (a) Excluded Foreign Subsidiary, (b) Immaterial Subsidiary, (c) Subsidiary that is prohibited, but only so long as such Subsidiary would be prohibited, by applicable law, rule or regulation or by any contractual obligation existing on (but not incurred in anticipation of) the date such Subsidiary is acquired or organized (as long as, in the case of an acquisition of a Subsidiary, such prohibition did not arise as part of such acquisition) from guaranteeing the Obligations or that would require governmental or regulatory consent, approval, license or authorization to provide a guarantee unless such consent, approval, license or authorization has been received, (d) special purpose entities to the extent reasonably acceptable to the Required Lenders (such acceptance not to be unreasonably withheld, delayed or conditioned), if any, (e) not-for-profit Subsidiaries, if any, or (f) captive insurance companies , or (g) Funko UK and any of its Subsidiaries .

Executive Order No. 13224 ” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Existing Credit Facilities ” means, collectively, (a) the Note Purchase Agreement, dated May 29, 2013, as amended, by and among Funko and Gladstone Business Investment, LLC as successor by assignment from Gladstone Investment Corporation and Gladstone Capital Corporation as successor by assignment from Gladstone Business Loan, LLC and (b) the Credit and Security Agreement, dated as of May 29, 2013, by and among Wells Fargo Bank, National Association, Parent and Funko.

Existing Lenders ” means the lenders and buyers, as applicable, party to the Existing Credit Facilities.

 

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Extended Revolving Credit Commitment ” has the meaning specified therefor in Section 2.11.

Extended Term Loan ” has the meaning specified therefor in Section 2.11.

Extension Amendment ” means an amendment to this Agreement giving effect to the Extension Requests in accordance with Section 2.11.

Extension Election ” has the meaning specified therefor in Section 2.11.

Extension Request ” has the meaning specified therefor in Section 2.11.

Extraordinary Receipts ” means any cash received by the Ultimate Parent or any of its Subsidiaries in respect of (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (d) indemnity payments and (e) any purchase price adjustment received in connection with any purchase agreement in relation to a Permitted Acquisition (other than the Acquisition Agreement).

Facility ” means any real property, including, without limitation, the land on which such facility is located, all buildings and other improvements thereon, all fixtures located at or used in connection with such facility, to the extent owned by any Loan Party, including any New Facility.

FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

FATCA ” has the meaning specified therefor in Section 2.09(e).

Federal Funds Effective Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight Federal funds transactions arranged by Federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided , if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced.

Federal Funds Open Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by Administrative Agent (an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a

 

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Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by Administrative Agent at such time (which determination shall be conclusive absent manifest error); provided however, that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding Business Day. If and when the Federal Funds Rate changes, the rate of interest hereunder will change automatically without notice to the Borrowers, effective on the date of any such change.

“Fee Letter” means the Fee Letter, dated as of the Amendment No. 3 Effective Date, among the Borrowers and the Administrative Agent.

Field Survey and Audit ” means a field survey and audit of the Loan Parties and an appraisal of the Collateral performed by auditors, examiners and/or appraisers selected by the Agents.

Final Maturity Date ” means the earliest of (i) October 30, 2021, (ii) the date on which all Loans shall become due and payable in accordance with the terms of this Agreement, and (iii) the payment in full of all Obligations and the termination of all Commitments.

Financial Statements ” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2014, and the related consolidated statement of operations, shareholders’ equity and cash flows for the Fiscal Year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the nine (9) months ended September 30, 2015, and the related consolidated statement of operations, shareholder’s equity and cash flows for the nine (9) months then ended.

First Amendment Term Loan has the meaning specified therefor in Section 2.01(a)(ii) (as amended by means the term loan, in the aggregate principal amount of $50,000,000, made by the Lenders on the Amendment No. 1 ).” Effective Date.

First Amendment Term Loan Commitment ” means, with respect to each Lender, the commitment of such Lender to make the First Amendment Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A) hereto (as amended by Amendment No.  1 ), as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.

Fiscal Quarter ” means any of the quarterly accounting periods of the Loan Parties ending on or about March 31, June 30, September 30 and December 31 of each year.

Fiscal Year ” means any of the annual accounting periods of the Loan Parties ending on or about December 31 of each year.

Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of (a) the result of (i) Consolidated EBITDA of such Person and its Subsidiaries for such period, minus (ii) the sum of (x) unfinanced Capital Expenditures made by such Person and its Subsidiaries during such period (excluding expenditures representing the purchase price for any Permitted Acquisition or Investment permitted pursuant to clause (p) of the definition thereof), plus (y) cash income taxes paid by such Person and its Subsidiaries during such period, plus (z) all Permitted Management Fees paid in cash by such Person or any of its Subsidiaries to

 

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any of its Affiliates during such period, to (b) the sum of (i) all scheduled installments of principal of Indebtedness (excluding any principal payments made in relation to the Funko Earnout , the Underground Toys Earnout or any Funko Earnout Preferred Equity) of such Person and its Subsidiaries paid during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Cash Interest Expense of such Person and its Subsidiaries for such period, plus (iii) cash dividends or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with any merger or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions (A) paid by a Loan Party to any other Loan Party, (B) constituting tax distributions, (C) by Ultimate Parent in relation to the Funko Earnout Preferred Equity, including, without limitation, for purposes of redemptions of the Funko Earnout Preferred Equity or , (D) made on or about the Amendment No. 1 Effective Date pursuant to Section 7.02(h)(H) , or (E) made on or about the Amendment No. 3 Effective Date pursuant to Section 7.02(h)(I) ) during such period (clauses (b)(i), (b)(ii) and (b)(iii), collectively, “ Fixed Charges ”); provided, that (x) for the fiscal quarter ending March 31, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on March 31, 2016, (y) for the fiscal quarter ending June 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on June 30, 2016), and (z) for the fiscal quarter ending September 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on September 30, 2016

Flow of Funds Agreement ” means a Flow of Funds Agreement, in form and substance reasonably satisfactory to the Agents, by and among the Loan Parties, the Agents and the Lenders, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with this Agreement.

Foreign In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location outside the United States to any location of a Loan Party within the United States.

Funding Losses ” has the meaning specified therefor in Section 2.08.

“Funko” has the meaning specified therefor in the preamble hereto.

Funko 2015 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $40,000,000, contingent on the Ultimate Parent achieving at least $60,700,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2015 and payable in 2016 after receipt of the audited financial statements for the 2015 Fiscal Year.

Funko 2016 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $25,000,000, contingent on the Ultimate Parent achieving at least $80,000,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2016 and payable in 2017 after receipt of the audited financial statements for the 2016 Fiscal Year. “ Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

 

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Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

Funko Earnout ” means, collectively, the Funko 2015 Earnout and the Funko 2016 Earnout.

Funko Earnout Preferred Equity ” means SP Units (as defined in the Funko LLC Agreement) of the Ultimate Parent that are issued as a result of the non-payment of the Funko Earnout within 20 Business Days after the applicable Earnout Determination Date (as defined in the Acquisition Agreement) in accordance with Section 2.5 of the Funko LLC Agreement, with rights to receive priority distributions from the Ultimate Parent until the holders thereof have received aggregate distributions equal to any unpaid amounts plus an annual preferred return of 11% for the first 90 day period after issuance, 13% for the next 90 day period and 15% thereafter, accruing daily and compounding annually.

Funko LLC Agreement ” means the limited liability operating agreement of the Funko Acquisition Holdings, L.L.C., dated as of October 30, 2015.

Funko Sellers ” means the sellers under the Acquisition Agreement.

Funko Transaction Costs ” means those certain fees and expense reimbursements to the Permitted Holders in an aggregate amount not to exceed $20,200,000.

“Funko UK” means Funko UK, Ltd., a private limited company formed under the laws of England and Wales, which is a wholly-owned Subsidiary of Funko.

“Funko UK Lease Guarantees” means the guarantees provided by Funko to secure the payment obligations of Funko UK under any real property leases.

GAAP ” means generally accepted accounting principles in effect from time to time in the United States, and as applied on a consistent basis in all subsequent periods; provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements; provided , further , that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in this Agreement, the Agents and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the applicable covenants shall be calculated as if no such change in GAAP has occurred.

Governing Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the

 

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certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture agreement, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

Governmental Acts ” has the meaning specified therefor in Section 3.09.

Governmental Authority ” means any nation or government, any Federal, state, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency, authority, division or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Guaranteed Obligations ” has the meaning specified therefor in Section 11.01.

Guarantor ” has the meaning specified therefor in the preamble hereto.

Guaranty ” means (a) the guaranty of each Guarantor party hereto contained in ARTICLE XI hereof and (b) each other guaranty, in form and substance reasonably satisfactory to the Collateral Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders guaranteeing all or part of the Obligations.

Hazardous Material ” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or risk to human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.

Hedge Liabilities ” means the liabilities of the Borrowers under any Hedge Agreement as calculated on a marked-to-market basis in accordance with GAAP.

 

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Hedging Agreement ” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements, and (without limiting the generality of any of the foregoing) specifically including any foreign exchange transaction, including spot and forward foreign currency purchases and sales, listed or over-the-counter options on foreign currencies, non-deliverable forwards and options, foreign currency swap agreements, and currency exchange rate price hedging arrangements), and any confirmation executed in connection with any such agreement or arrangement.

Highest Lawful Rate ” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

Holdout Lender ” has the meaning specified therefor in Section 12.02(b).

In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit.

Immaterial Subsidiary ” means, as of any date, any Subsidiary whose total assets, as of that date, are less than $25,000, provided that total assets of all Immaterial Subsidiaries shall not, in the aggregate, exceed $100,000 as of any date.

Indebtedness ” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables or other current accounts payable incurred in the ordinary course of such Person’s and paid in accordance with historical practices of the Loan Parties (but including earnouts or similar obligations); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all Hedge Liabilities; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations relating to obligations described in clauses (a) through (h) of this definition; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer, except to the extent that such Person is not liable for such Indebtedness.

 

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Indemnified Matters ” has the meaning specified therefor in Section 12.16.

Indemnitees ” has the meaning specified therefor in Section 12.16.

Initial Term Loan ” has the meaning specified therefor in Section 2.01(a)(ii) (as amended by Amendment No.  1) .

Initial Term Loan Commitment” with respect to each Lender, the original commitment of such Lender to make the Initial Term Loan to the Borrowers on the Effective Date in the amount set forth in Schedule 1.01(A) hereto ( as in effect on the Effective Date ), as such commitments were reduced on the Effective Date in accordance with the terms of this Agreement.”

Insolvency Proceeding ” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

“Installment Waiver Fee” has the meaning specified therefor in Section 2.03(b)(ii).

Intercompany Subordination Agreement ” means an Intercompany Subordination Agreement made by the Loan Parties in favor of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Agents.

Interest Payment Date ” means (a) as to any Reference Rate Loan denominated in Dollars, the first day of each month, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, each day which is three months after the first day of such Interest Period and the last day of such Interest Period and (d) as to any mandatory prepayment required pursuant to this Agreement, the date of such prepayment.

Interest Period ” means as to any LIBOR Rate Loan made to the Borrowers, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Rate Loan and ending on the date one, two or three months thereafter, as selected by the Administrative Borrower; provided that:

(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which case such Interest Period shall end on the preceding Business Day;

(ii) any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

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(iii) the Borrowers may not elect an Interest Period for any Loan which would extend beyond the Final Maturity Date.

Interest Rate Hedging Agreements ” means each interest rate swap or similar Hedging Agreement entered into by a Loan Party with any Agent, Lender or Affiliate thereof with respect to the interest rates on the Loans or any other Permitted Indebtedness permitted under this Agreement.

Interest Rate Hedging Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Interest Rate Hedging Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Agents, any Lender or any Affiliate thereof as a result of Administrative Agent, such Lender or such Affiliate purchasing participations or executing indemnities or reimbursement obligations with respect to the interest rate swap provided to such Person pursuant to the Interest Rate Hedging Agreements. Notwithstanding any of the foregoing, Interest Rate Hedging Obligations shall not include any Excluded Hedge Liabilities.

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

Inventory ” means, with respect to any Person, all inventory (as that term is defined in the Uniform Commercial Code) and all goods and merchandise of such Person, including, without limitation, all raw materials, work-in-process, packaging, supplies, materials and finished goods of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account Receivable or cash.

Investment ” means, with respect to any Person, (x) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts Receivable arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (y) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (z) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP.

ISP98 Rules ” has the meaning specified therefor in Section 3.02(b).

 

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Joinder Agreement ” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).

L/C Fee Rate ” means 2.50% per annum.

L/C Issuer ” means PNC or such other bank as the Administrative Agent may select in its Permitted Discretion.

Law(s) ” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.

Lease ” means any lease of real property to which any Loan Party or any of its Subsidiaries is a party as lessor or lessee.

Lender ” has the meaning specified therefor in the preamble hereto.

Lender-Provided Hedge Agreement ” means a Hedging Agreement which is provided by any Lender, Agent or any affiliate thereof. Except to the extent of any Excluded Hedge Liabilities, the Hedge Liabilities of the Borrowers to the provider of any Lender-Provided Hedge Agreement shall be “Obligations” hereunder, guaranteed obligations under any Guaranty and secured obligations under any Security Agreement and otherwise treated as Obligations for purposes of each of the Loan Documents. The Liens securing the Hedge Liabilities shall be pari passu with the Liens securing all other Obligations under this Agreement and the Loan Documents.

Letter of Credit Application ” has the meaning specified therefor in Section 3.02(a).

Letter of Credit Borrowing ” has the meaning specified therefor in Section 3.04.

Letter of Credit Fees ” has the meaning specified therefor in Section 2.06(c).

Letter of Credit Guaranty ” means one or more guaranties by the Administrative Agent in favor of the L/C Issuer guaranteeing or relating to the obligations of the Borrower to the L/C Issuer under a reimbursement agreement, Letter of Credit Application or other like document in respect of any Letter of Credit.

Letter of Credit Obligations ” means, at any time and without duplication, the sum of (a) Reimbursement Obligations with respect to all Letters of Credit at such time, plus (b) the Maximum Undrawn Amount with respect to all Letters of Credit, plus (c) all amounts for which Administrative Agent may be liable to the L/C Issuer pursuant to any Letter of Credit Guaranty with respect to any Letter of Credit.

Letter of Credit Sublimit ” means $3,000,000.

 

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Letters of Credit ” has the meaning specified therefor in Section 3.01.

LIBOR ” means for each LIBOR Rate Loan made to the Borrowers, with respect to each day during the applicable Interest Period, the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by Administrative Agent as an authorized information vendor for the purpose of displaying rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market (a “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such LIBOR Rate Loan and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any LIBOR Alternate Source, a comparable replacement rate determined by Agent at such time (which determination shall be conclusive absent manifest error; provided , that, (i) with respect to the Term Loan, at no time shall LIBOR be less than 1.00% and (ii) with respect to the Revolving Loans, at no time shall LIBOR be less than 0%.

LIBOR Notice ” means a written notice substantially in the form of Exhibit D.

LIBOR Option ” has the meaning specified therefor in Section 2.07(a).

LIBOR Rate ” means, for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by the Administrative Agent (rounded upwards if necessary, to the next 1/100% of 1%) by dividing (i) applicable LIBOR for such Interest Period by (ii) 1.00 minus the Reserve Percentage; provided that such LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage; provided, further, that from and after the Amendment No. 1 Effective Date, the LIBOR Rate with respect to Revolving Loans shall be the Daily LIBOR Rate.

LIBOR Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the LIBOR Rate.

Lien ” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement intended as, or having the effect of, security.

Loan ” means the Term Loan or any Revolving Loan made by an Agent or a Lender to the Borrowers pursuant to ARTICLE II hereof.

Loan Account ” means an account maintained hereunder by the Administrative Agent on its books of account at the Payment Office, and with respect to the Borrowers, in which the Borrowers will be charged with all Loans made to, and all other Obligations incurred by, the Borrowers.

 

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Loan Document ” means this Agreement, the Security Agreement, any other Security Documents, any Guaranty, any Note, the Intercompany Subordination Agreement, any Joinder Agreement, the Flow of Funds Agreement, any Letter of Credit Application, any Mortgage, the Fee Letter, the Collateral Assignment, any Bank Product Agreement, and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan, any Letter of Credit Obligation or any other Obligation; provided, however, that for purposes of Section 9.1 hereof, no Interest Rate Hedging Agreement or other Bank Product Agreement shall constitute a Loan Document.

Loan Party ” means any Borrower and any Guarantor.

Management Agreement ” means the professional services agreement dated as of the date hereof by and among ACON Equity Management, L.L.C., a Delaware limited liability company, and Funko, LLC, a Washington limited liability company.

Material Adverse Effect ” means a material adverse effect on any of (a) the operations, business, assets, properties, financial condition or operating results of the Loan Parties taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to fully and timely perform any of their obligations under any Loan Document to which they are parties, (c) the rights and remedies of any Agent or any Lender under any Loan Document, or (d) the validity, perfection or priority of a Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any of the Collateral; provided that, notwithstanding the foregoing, (i) the lack of perfection or priority of any Liens granted to the Collateral Agent solely in respect of Collateral with an aggregate value not in excess of $250,000 (valued at fair market value on Collateral other than cash) shall not be deemed a Material Adverse Effect and (ii) the determination of the existence of any Material Adverse Effect shall not give effect to any consequences of actions of the Agents or any Lender under the Loan Documents.

Material Contract ” means, with respect to any Person, each contract or agreement to which such Person is a party, in respect of which a breach or termination could reasonably be expected to have a Material Adverse Effect.

Maximum Face Amount ” means, with respect to any outstanding Letter of Credit, the face amount of such Letter of Credit including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective, as such face amount or increases are amended from time to time.

Maximum Revolving Loan Amount ” means $ 50,000,000 80,000,000 .

Maximum Undrawn Amount ” means, with respect to any outstanding Letter of Credit, the amount of such Letter of Credit that is or may become available to be drawn, including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective.

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

 

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Mortgage ” means a mortgage, deed of trust or deed to secure debt, in form and substance reasonably satisfactory to the Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and the Lenders, securing the Obligations and delivered to the Collateral Agent.

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its Subsidiaries has contributed to, or has been obligated to contribute, at any time during the preceding six (6) years, excluding any Non-U.S. Plan.

Negotiable Document ” shall mean a Document that is “negotiable” within the meaning of Article 7 of the Uniform Commercial Code.

Net Amount of Eligible Accounts Receivable ” means the aggregate unpaid invoice amount of Eligible Accounts Receivable less, without duplication, sales, excise or similar taxes, returns, discounts, chargebacks, claims, advance payments, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect to such Eligible Accounts Receivable.

Net Cash Proceeds ” means, (a) with respect to any Disposition by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Disposition (other than Indebtedness under this Agreement), (ii) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (iii) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (iv) net income taxes to be paid in connection with such Disposition (after taking into account any tax credits or deductions and any tax sharing arrangements) and (b) with respect to the issuance or incurrence of any Indebtedness by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary in connection therewith, after deducting therefrom only (i) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (ii) transfer taxes paid by such Person or such Subsidiary in connection therewith and (iii) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements); in each case of clause (a) and (b) to the extent, but only to the extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

Net Liquidation Percentage ” shall mean, as of any date of determination, the percentage of the book value of the Borrowers’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be as determined from time to time by an appraisal company selected by the Agents.

 

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New Facility ” has the meaning specified therefor in Section 7.01(o).

New Lending Office ” has the meaning specified therefor in Section 2.09(b)(i).

Non-Qualifying Party ” means any Borrower or any Guarantor that on the Eligibility Date fails for any reason to qualify as an Eligible Contract Participant.

Non-U.S. Lender ” has the meaning specified therefor in Section 2.09(d).

Note ” means each promissory note, if any, issued by the Borrowers to a Lender in accordance with the provisions of this Agreement.

Notice of Borrowing ” has the meaning specified therefor in Section 2.02(a).

Obligations ” means all present and future indebtedness, obligations, and liabilities of each Loan Party to the Agents and the Lenders, the L/C Issuer and the Bank Product Providers arising under or in connection with any of the Loan Documents, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (i) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (ii) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its Permitted Discretion) may elect to pay or advance on behalf of such Person. Notwithstanding any of the foregoing, Obligations shall not include any Excluded Hedge Liabilities.

OFAC Sanctions Programs ” means the laws, regulations and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as it has been or shall thereafter be renewed, extended, amended, or replaced, and the list of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended from time to time.

Operating Lease Obligations ” means all obligations for the payment of rent for any real or personal property under leases or agreements to lease, other than Capitalized Lease Obligations.

Order ” has the meaning specified therefor in Section 3.10.

Other Taxes ” has the meaning specified therefor in Section 2.09(b).

 

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Paid in Full ”, “ Pay in Full ” or “ Payment in Full ” means, with respect to any Obligations, (i) the payment in full in cash (or other consideration acceptable to the recipient thereof) of all such Obligations (other than (x) contingent indemnification obligations to the extent no claim giving rise thereto has been asserted and (y) Hedge Liabilities and Bank Product Obligations that, at the time of determination, are allowed by the Person to whom such Obligations are owing to remain outstanding), (ii) the termination or expiration of all of the Revolving Credit Commitments and (iii) in connection with the termination or expiration of all of the Revolving Credit Commitments, either (x) the cancellation and return to the Administrative Agent of all Letters of Credit or (y) the Cash Collateralization (or the delivery of a back-to-back letter of credit reasonably acceptable to the Administrative Agent) of all Letters of Credit.

Parent ” has the meaning specified therefor in the preamble hereto.

Participant Register ” has the meaning specified therefor in Section 12.07(g).

Participation Commitment ” means each Revolving Loan Lender’s obligation to buy a participation of the Letters of Credit issued hereunder.

Participation Revolving Loan ” has the meaning specified therefor in Section 3.04(c) hereof.

Payment Office ” means Administrative Agent’s office located at Two Tower Center, East Brunswick, New Jersey 08816 or at such other office or offices of Administrative Agent as may be designated in writing from time to time by the Administrative Agent to the Collateral Agent and the Borrower.

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

Perfection Certificate ” means a certificate in form and substance reasonably satisfactory to the Collateral Agent providing information with respect to the property of each Loan Party.

Permitted Acquisition ” means any Acquisition so long as:

(a) No Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition and the proposed Acquisition is consensual;

(b) the Administrative Borrower has provided the Agents with written notice of the proposed Acquisition at least ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition, copies of then available drafts of the acquisition agreement and other material documents relative to the proposed Acquisition (provided that, promptly following the closing and consummation of such Acquisition, Administrative Borrower shall provide Agents with copies of the final executed acquisition agreement and related material documents);

 

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(c) the Administrative Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Acquisition, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents) created by adding the historical combined financial statements of the Ultimate Parent and its Subsidiaries (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, the Ultimate Parent and its Subsidiaries (i) would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are projected to be in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended one year after the proposed date of consummation of such proposed Acquisition;

(d) [intentionally omitted];

(e) except in connection with the Underground Toys Acquisition, the Person to be acquired (or the business represented by the assets to be acquired) is engaged in a business principally located in the United States and permitted to be engaged in by the Loan Parties pursuant to Section 7.02(d) and is joined as a Loan Party pursuant to Section 7.01(b) within the time periods set forth therein;

(f) the board of directors (or other comparable governing body) of such Person and the seller of such Person or assets shall have duly approved the proposed Acquisition;

(g) after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Borrowers shall have (A) Availability on the date of such proposed Acquisition after giving effect thereto of at least $10,000,000, and (B) projected pro forma Availability for the twelve month period after the date of such proposed Acquisition of at least $10,000,000;

(h) the purchase consideration payable (including without limitation, earnout or similar obligations, but excluding (i) consideration payable in shares constituting Qualified Equity Interests of Ultimate Parent, and (ii) any amount funded with Available Equity Proceeds or paid by the issuance of Qualified Equity Interests) in respect of all Permitted Acquisitions shall not exceed $25,000,000 in the aggregate; and provided, that the purchase consideration payable in connection with the Underground Toys Acquisition (including, without limitation, the Underground Toys Earnout) shall not count toward the aforementioned $25,000,000 limitation; and

 

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(i) after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00.

Permitted Cure Stock ” has the meaning specified therefor in the last paragraph of Section 9.01.

Permitted Discretion ” means, as to any Agent or Lender, as the case may be, a determination made in good faith and in the exercise of commercially reasonable (from the perspective of a secured asset-based lender) business judgment exercised in accordance with generally applicable practices of such Agent or Lender for transactions of this type.

Permitted Funko Earnout Payments ” means payments (including, without limitation, any partial payments thereof) made by the Loan Parties in relation to Funko Earnout, which payments shall be limited as follows: (a) in the case of the Funko 2015 Earnout, following the payment in cash by the Ultimate Parent of the first $15,000,000 of such Funko 2015 Earnout with the cash proceeds of new equity issued by the Ultimate Parent, the Loan Parties may provide funds for the payment of any remaining obligations in respect of the Funko 2015 Earnout with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for the period from the Effective Date through the end of calendar month recently ended prior to the date of the payment of the Funko 2015 Earnout and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2015 Earnout, Availability would be less than $15,000,000, (b) in the case of the Funko 2016 Earnout, the Loan Parties may provide funds for the payment thereof with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for Fiscal Year 2016 (calculated after giving effect to any Excess Cash Flow mandatory prepayments that are due to the Lenders for Fiscal Year 2016 pursuant to Section 2.05(c)) and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2016 Earnout, Availability would be less than $15,000,000 and (c) any additional amounts in respect of the Funko 2015 Earnout or the Funko 2016 Earnout that are paid either (i) through the issuance of Funko Earnout Preferred Equity or (ii) with the cash proceeds of new equity issued by the Ultimate Parent.

Permitted Holder ” means ACON Equity Management, L.L.C., a Delaware limited liability company, and any other entity owned or controlled by one or more of the managing members of ACON Equity Management, L.L.C. on the Effective Date (“ ACON ”), which are Affiliates and Related Funds that are equity funds to the extent such Persons are controlled, directly or indirectly, by ACON by way of ownership or general partner or managing member relationship.

Permitted Indebtedness ” means:

 

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(a) any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;

(b) any other Indebtedness listed on Schedule 7.02(b), and the extension of maturity, refinancing or modification of the terms thereof; provided , however , that (i) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties in any material respect and the Lenders than the terms of the Indebtedness being extended, refinanced or modified and (ii) after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification, plus any accrued interest, prepayment premium and refinancing costs, and the amount of unfunded commitments with respect thereto;

(c) Indebtedness evidenced by Capitalized Lease Obligations entered into in order to finance Capital Expenditures, which Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under this clause (c) and clause (d) of this definition, does not exceed $2,000,000 at any time outstanding;

(d) Indebtedness permitted by clause (e) of the definition of “Permitted Lien”;

(e) Indebtedness permitted under Section 7.02(e);

(f) Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds;

(g) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year; and

(h) the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party’s operations and not for speculative purposes;

(i) Subordinated Indebtedness in an aggregate amount not exceeding $5,000,000 at any time outstanding;

(j) Acquired Indebtedness in an amount not to exceed $5,000,000 outstanding at any one time;

(k) Earnout and other similar contingent obligations incurred to a seller in a Permitted Acquisition in an aggregate amount (calculated based on the maximum amount potentially payable with respect to such obligations) outstanding not to exceed at any time the lesser of (i) $5,000,000 for any Permitted Acquisition and (ii) 20% of the cash purchase price of such Permitted Acquisition;

 

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(l) the Funko Earnouts;

(m) the Funko Earnout Preferred Equity; and

(n) other unsecured Indebtedness in an aggregate amount at any one time not to exceed $1,000,000.

Permitted Intercompany Advances ” means Investments made by (a) a Loan Party into another Loan Party (other than the Ultimate Parent), (b)  [reserved] the Funko UK Lease Guaranties , (c) a non-Loan Party to another non-Loan Party, (d) a non-Loan Party into a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, and (e) a Loan Party into a non-Loan Party Subsidiary so long as (i) the aggregate outstanding amount of all such Investments made by the Loan Parties following the Effective Date does not exceed (x) $5,000,000 in the aggregate with respect to Investments made into Funko UK and its Subsidiaries and (y)  $250,000 in the aggregate with respect to Investments made into all other non-Loan Party Subsidiaries , (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment and (iii) after giving pro forma effect to such proposed intercompany Investment (and any borrowings of Revolving Loans to fund such proposed intercompany Investment), the Borrowers shall have Availability on the date of such proposed intercompany Investment assuming that such intercompany Investment (and any Revolving Loans drawn to fund such intercompany Investment) had been made on the first day of such 30 day period), of at least $10,000,000. Notwithstanding anything to the contrary in this Agreement, in the case of any such Investment described in clause (e) above consisting of a guarantee or other similar Contingent Obligation issued by any Loan Party to support any Indebtedness or other obligations or liabilities of a non-Loan Party, (i) such guarantee or other Contingent Obligation must be unsecured and (ii) the full amount for which such Loan Party is potentially liable under such guarantee or other Contingent Obligation shall be counted against the limitation set forth above for all Investments under clause (e) above.

Permitted Investments ” means:

(a) Investments in cash and Cash Equivalents;

(b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;

(c) advances made in connection with purchases of goods or services in the ordinary course of business;

(d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;

(e) Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;

 

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(f) Permitted Intercompany Advances and Hedging Agreements permitted pursuant to clause (h) of the definition of Permitted Indebtedness;

(g) extensions of trade credit in the ordinary course of business;

(h) Guaranteed Obligations described in Section 11.01 ;

(i) loans and advances to employees, officers and directors of any Loan Party in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Loan Parties not to exceed $100,000 at any one time outstanding;

(j) non-cash loans and advances by Ultimate Parent or any of its Subsidiaries to employees, officers and directors of any of Ultimate Parent and its Subsidiaries, so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in the Ultimate Parent, the proceeds of which are contributed to the capital of the Parent;

(k) Investments in assets useful in the business of the Borrowers and their Subsidiaries made by a Borrower or any of its Subsidiaries, whether in accordance with Section 2.05(c)(viii) or as a result of the making of Capital Expenditures otherwise permitted hereunder.

(l) [reserved];

(m) [reserved];

(n) Permitted Acquisitions;

(o) [reserved]; and

(p) additional Investments in an aggregate amount not to exceed $3,000,000 during the term of this Agreement (in each case, plus any Available Equity Proceeds), so long as (x) after giving pro forma effect to such proposed Investment the Borrowers shall have (A) Availability on the date of such proposed Investment (assuming that such Investment (and any Revolving Loans drawn to fund such Investment) had been made on the first day of such 30 day period), of at least $10,000,000 and (B) projected pro forma Availability for the twelve month period after the date of such proposed Investment, of at least $10,000,000 and (y) Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Investment, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Investment, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents), (1) the Ultimate Parent and its Subsidiaries would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Investment and (2) the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00; provided that the foregoing clauses (x) and (y) shall not be applicable to Investments pursuant to this clause (p) in an aggregate amount not to exceed $1,000,000 during any Fiscal Year.

 

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Permitted Liens ” means:

(a) Liens securing the Obligations;

(b) Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c);

(c) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 45 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

(d) Liens described on Schedule 7.02(a), provided that (i) no such Lien shall at any time be extended to cover any additional property not subject thereto on the Effective Date and (ii) the principal amount of the Indebtedness secured by such Liens shall not be extended, renewed, refunded or refinanced other than in accordance with clause (b) of the definition of Permitted Indebtedness;

(e) purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition of such equipment; provided , however , that (A) no such Lien shall extend to or cover any other property of any Loan Party or any of its Subsidiaries and (B) the aggregate principal amount of Indebtedness secured by (i) any or all such Liens and (ii) all Indebtedness permitted by clause (c) of Permitted Indebtedness shall not exceed at any one time outstanding $2,000,000;

(f) deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;

(g) easements, zoning restrictions, rights of way, and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business;

(h) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

 

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(i) Liens on real property or equipment securing Indebtedness permitted by subsection (c) of the definition of Permitted Indebtedness;

(j) the title and interest of a lessor, sublessor, licensee or licensor in and to personal property leased or subleased (other than through a capital lease) or licensed, in each case extending only to such personal property;

(k) non-exclusive licenses or sublicenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;

(l) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(k);

(m) (i) contractual rights of setoff in favor of vendors and customers arising in the ordinary course of business, (ii) rights of setoff or bankers’ liens upon deposits of cash in favor of banks, securities intermediaries or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts or security accounts in the ordinary course of business and (iii) Liens in favor of collecting banks arising under Section 4-208 of the UCC;

(n) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;

(o) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;

(p) Liens solely on any cash earnest money deposits made by Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, provided that, the aggregate amount of all such deposits outstanding shall not exceed 20% of the purchase price for the related Permitted Acquisition at any time;

(q) Liens assumed by Borrower or its Subsidiaries in connection with a Permitted Acquisition that secures Acquired Indebtedness, provided that, the Liens permitted pursuant to this clause (q) shall not include (x) any Liens on any Accounts Receivable or Inventory (or the proceeds thereof) of any Loan Party or (y) any “blanket liens” on all or substantially all of the assets of any Loan Party;

(r) The filing of UCC financing statements solely as a precautionary measure in connection with an operating lease, in each case, relating solely to the property that is the subject of such operating lease;

(s) Liens (i) arising out of any consignments of goods belonging to third-parties to Borrowers as consignee or out of any consignments of goods belonging to Borrowers consignor to third-parties entered into by the Borrowers or any of their Subsidiaries in the ordinary course of business, or (ii) incurred by the Borrowers or their Subsidiaries arising under Section 2-505 of the UCC;

 

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(t) Liens applicable to the assets of any Subsidiary of the Borrowers (excluding any Loan Party) that is not organized under the laws of any jurisdiction of the United States, in each case, so long as such Liens secure Indebtedness or other obligations otherwise permitted to be incurred pursuant to the Loan Documents; and

(u) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000.

Permitted Management Fees ” means (a) management or consulting fees payable pursuant to the terms of the Management Agreement in an aggregate amount not to exceed the lesser of (x) $2,000,000 in any Fiscal Year and (y) two percent of Consolidated EBITDA with respect to any Fiscal Year, the payment of which is subordinated to the Obligations on terms and conditions specified in the Management Agreement as in effect on the Effective Date and (b) the reimbursement of third-party out-of-pocket expenses incurred in connection with the Management Agreement.

Person ” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.

Plan ” means any Employee Plan or Multiemployer Plan.

PNC ” means PNC Bank, National Association.

Post-Default Rate ” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.00%.

Post-Term Cash Collateral ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit Obligations ” has the meaning specified therefor in Section3.02(d) hereof.

“Private Placement” has the meaning specified therefor in the definition of “Change of Control” in Section 1.01 hereof.

Pro Forma EBITDA ” means, with respect to any assets acquired in a Permitted Acquisition, the amount of such assets’ Consolidated EBITDA for the most recent trailing twelve (12) month period ending as of the last day of the month preceding the closing of the respective Permitted Acquisition for which financial statements are available, adjusted as provided herein. Such amount shall be determined by the Borrowers and shall be subject to the consent of, (x) if, a quality of earnings report is prepared in accordance with generally accepted standards by a

 

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nationally recognized certified public accounting firm, the Collateral Agent or (y) if there is no such quality of earnings report, the Agents acting in good faith (such consent not to be unreasonably withheld or delayed), based upon and derived from financial information delivered to the Agents prior to the consummation of such Permitted Acquisition (Pro Forma EBITDA for such assets acquired in such Permitted Acquisition as calculated and consented to as of such closing being referred to as the “ Initial Pro Forma EBITDA ”). After the closing of such Permitted Acquisition and unless otherwise agreed by the Agents and the Borrowers, Pro Forma EBITDA with respect thereto shall equal Initial Pro Forma EBITDA multiplied by a fraction the numerator of which is 365 minus the number of days after the closing of the Permitted Acquisition included in any period for which financial statements have been delivered and the denominator of which is 365.

For purposes of demonstration only, assuming that a Permitted Acquisition closes on August 1, 2016 and Initial Pro Forma EBITDA has been determined to be $10,000,000, Pro Forma EBITDA with respect to the assets acquired in such Permitted Acquisition for the fiscal period ending September 30, 2016 (assuming financial statements for the period ending September 30, 2016 have been delivered) shall equal:

$10,000,000 x (365 - 60*) / 365 = $ 8,350,000

*the number of days elapsed between August 1, 2016 and September 30, 2016.)

Pro Rata Share ” means:

(a) with respect to a Lender’s obligation to (x) make Revolving Loans and receive payments of interest, fees, and principal with respect thereto and (y) participate in Letters of Credit and Reimbursement Obligations with respect to Letters of Credit, to reimburse the L/C Issuer with respect to Letters of Credit, and right to receive payments of fees with respect thereto, the percentage obtained by dividing (A) such Lender’s Revolving Credit Commitment by (B) the Total Revolving Credit Commitment; provided that if the Total Revolving Credit Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s Revolving Loans and its interest in the Letter of Credit Obligations and the denominator shall be the aggregate unpaid principal amount of all Revolving Loans and Letter of Credit Obligations; provided , further , however , that if all of the Revolving Loans have been Paid in Full and Letters of Credit remain outstanding, Pro Rata Share for purposes of clause (y) above shall be determined as if the Revolving Credit Commitments had not been terminated or reduced to zero and based upon the Revolving Credit Commitments as they existed immediately prior to their termination or reduction to zero and also provided in addition that, for purposes of this paragraph (a), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder,

(b) with respect to a Lender’s obligation to make the Term Loan B and receive payments of interest, fees, and principal with respect thereto to the Term Loan B , the percentage obtained by dividing (A) such Lender’s Term Loan B Commitment, by (B) the Total Term Loan B Commitment, provided that if the Total Term Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loan and the denominator shall be the aggregate unpaid principal amount of the Term Loan ,

 

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(c) with respect to all other matters (including, without limitation, the indemnification obligations arising under Section 10.05 and the definition of Required Lenders), the percentage obtained by dividing (i) the sum of such Lender’s Revolving Credit Commitment and the unpaid principal amount of such Lender’s portion of the Term Loans by (ii) the sum of the Total Revolving Credit Commitment and the aggregate unpaid principal amount of the Term Loans, provided that if such Lender’s Revolving Credit Commitment shall have been reduced to zero, such Lender’s Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of such Lender’s Revolving Loans (including Agent Advances) and its interest in the Letter of Credit Obligations and if the Total Revolving Credit Commitment shall have been reduced to zero, the Total Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances) and Letter of Credit Obligations and also provided in addition that, for purposes of this paragraph (e), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder.

Published Rate ” shall mean the rate of interest published each Business Day in the Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then as published in another publication selected by the Administrative Agent).

“Qualified Cash” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of a Loan Party or any Subsidiary of a Loan Party that is held in a deposit account subject to a Cash Management Agreement in favor of the Collateral Agent, for the benefit of the Lenders or with respect to which any Agent is the depositary or securities intermediary and that is on deposit with banks, or in securities accounts with securities intermediaries, or any combination thereof.

Qualified ECP Loan Party ” means each Borrower or Guarantor that on the Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or other entity other than a “commodity pool” as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000 or (b) an Eligible Contract Participant that can cause another Person to qualify as an Eligible Contract Participant on the Eligibility Date under Section 1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a “letter of credit or keepwell, support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the CEA.

Qualified Equity Interests ” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

Qualified Cash ” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of a Loan Party or any Subsidiary of a Loan Party that is held in a deposit account subject to a Cash Management Agreement in favor of the Collateral Agent, for the benefit of the Lenders or with respect to which any Agent is the depositary or securities intermediary and that is on deposit with banks, or in securities accounts with securities intermediaries, or any combination thereof.

 

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Qualified Initial Public Offering” has the meaning specified therefor in the definition of “Change of Control” in Section 1.01 hereof.

Real Property Deliverables ” means each of the following agreements, instruments and other documents in respect of each Facility (to the extent requested by the Collateral Agent and relevant to the applicable jurisdiction):

(a) a Mortgage duly executed by the applicable Loan Party,

(b) evidence of the recording of each such Mortgage in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Collateral Agent and the Lenders thereunder;

(c) a Title Insurance Policy or bring-down of the existing Title Insurance Policy with respect to each Mortgage, dated as of the Effective Date;

(d) a current ALTA survey and a surveyor’s certificate, in form and substance reasonably satisfactory to the Collateral Agent, certified to the Collateral Agent and to the issuer of the Title Insurance Policy with respect thereto by a licensed professional surveyor reasonably satisfactory to the Collateral Agent;

(e) a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility’s compliance with all applicable building codes, fire codes, other health and safety rules and regulations, parking, density and height requirements and other building and zoning laws;

(f) an opinion of counsel, reasonably satisfactory to the Collateral Agent, in the state where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Collateral Agent may reasonably request;

(g) Phase I Environmental Site Assessments with respect to such real property, certified to the Collateral Agent by a company reasonably satisfactory to the Collateral Agent;

(h) flood insurance for such Facility if all or a portion of such Facility is located in an area designated by the Federal Emergency Management Agency as an area having special flood hazards (including, without limitation, those areas designated as Zone A or Zone V), and in which flood insurance has been made available under the U.S. National Flood Insurance Program, in an amount equal to the full replacement cost of the buildings, fixtures and personalty located on such real property or such other amount as may be agreed to by Collateral Agent in writing; and

(i) such other agreements, instruments and other documents (including guarantees and opinions of counsel) as the Collateral Agent may reasonably require.

 

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Recipient ” has the meaning specified therefor in Section 2.09(b)(ii).

Reference Bank ” means PNC, its successors or any other commercial bank designated by the Administrative Agent to the Administrative Borrower from time to time.

Reference Rate ” means, on any day, the greatest of (i) the rate of interest publicly announced by the Reference Bank in New York, New York from time to time as its reference rate, base commercial lending rate, which rate may not be the lowest rate then being charged to commercial borrowers by the Reference Bank, (ii) the Federal Funds Open Rate plus 0.50% per annum, (iii) the Daily LIBOR Rate plus 1.00% per annum, so long as a Daily LIBOR Rate is offered, ascertainable and not unlawful, and (iv) 3.00% per annum. The reference rate, base rate or prime rate is determined from time to time by the Reference Bank as a means of pricing some loans to its borrowers and neither is tied to any external rate of interest or index nor necessarily reflects the lowest rate of interest actually charged by the Reference Bank to any particular class or category of customers. Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.

Reference Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.

Register ” has the meaning specified therefor in Section 12.07(d).

Registered Loans ” has the meaning specified therefor in Section 12.07(d).

Regulation T ,” “ Regulation U ” and “ Regulation X ” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.

Reimbursement Obligations ” has the meaning specified therefor in Section 3.04(b).

Reinvestment Eligible Funds ” has the meaning specified therefor in Section 2.05(c)(viii).

Related Fund ” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person.

Related Party Assignment ” has the meaning specified therefor in Section 12.07(b).

Related Party Register ” has the meaning specified therefor in Section 12.07(d).

Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

 

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Remedial Action ” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.

Replacement Lender ” has the meaning specified therefore in Section 12.02(b).

Reportable Compliance Event ” shall mean that any Covered Entity (x) becomes a Sanctioned Person, or (y) is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or (z) has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual violation of any Anti-Terrorism Law in a manner (with respect to any violation under this clause (z)) that could reasonably be expected to have a Material Adverse Effect.

Reportable Event ” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30 day notice to the PBGC under the regulations promulgated under such Section).

Required Lenders ” means Lenders whose Pro Rata Shares (calculated in accordance with clause (e) of the definition thereof) aggregate at least 51%.

Required Revolving Loan Lenders ” means Revolving Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (a) of the definition thereof) aggregate at least 51%.

Requirements of Law ” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Percentage ” means as of any day the maximum percentage in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).

Reserves ” means, as of any date of determination, such amounts (including, without limitation, the amount of any Bank Product Reserves, any Exchange Risk Reserve, any Dilution Reserve, any Royalty Reserve and any reserves for co-op advertising expenses and discounts for advertising expenses to the extent such expenses and discounts are not otherwise

 

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taken into account in determining the net amount of Eligible Accounts Receivable) as the Administrative Agent may from time to time establish in its good faith exercise of its Permitted Discretion (a) to reflect events, conditions, contingencies or risks which (i) adversely affect any Collateral or either Agent’s access thereto, or (ii) adversely affect the priority, perfection or enforceability of any of the security interest of the Agents or any Lender in the Collateral, or (b) in respect of any state of facts which the Administrative Agent reasonably determines to constitute a Default or an Event of Default. The amount of any Reserve established by the Administrative Agent shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserve as reasonably determined by the Administrative Agent. The Administrative Agent shall provide not less than three (3) days notice to the Administrative Borrower and the Collateral Agent of any new categories of Reserves that may be established after the date hereof and will be available to consult with the Administrative Borrower in connection with the basis for such new categories of Reserves.

Revolving Credit Commitment ” means with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers pursuant to its Revolving Credit Commitment, as applicable, in an aggregate amount pursuant to all such commitments of such Lender not to exceed the amount set forth opposite such Lender’s name in Schedule 1.01(A) hereto, as such amount may be terminated or reduced from time to time in accordance with the terms of this Agreement (and shall also mean, as the context require, any Revolving Credit Commitment of any Lender).

Revolver Credit Extension ” has the meaning specified therefor in Section 2.11.

Revolver Extension Request ” has the meaning specified therefor in Section 2.11.

Revolving Loan ” means the loans made by Revolving Loan Lenders to the Borrowers pursuant to Section 2.01(a)(i).

Revolving Loan Lender ” means a Lender with a Revolving Credit Commitment.

Revolving Loan Obligations ” means any Obligations with respect to the Revolving Loans (including without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Royalty Reserves ” means reserves established by the Administrative Agent in its good faith exercise of its Permitted Discretion against royalty payments due and payable by the Borrowers, it being understood that any such Royalty Reserves shall be limited to (1) 25% in respect of the first $12,500,000 of accrued royalties attributable to Eligible Inventory and (2) 100% in respect of accrued royalties in excess of $12,500,000 attributable to Eligible Inventory.

Sanctioned Country ” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

Sanctioned Person ” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

 

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SEC ” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.

Secured Party ” means any Agent, any Lender, the L/C Issuer, any Bank Product Provider and each other holder of any of the Obligations.

Securities Act ” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Securitization ” has the meaning specified therefor in Section 12.07(i).

Security Agreement ” means a Pledge and Security Agreement, in form and substance satisfactory to the Collateral Agent, made by the Loan Parties in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, as amended, amended and restated, supplemented or otherwise modified from time to time.

Security Documents ” means, collectively, the Security Agreement and the documents listed on Schedule 1.01(B) hereto or otherwise executed and delivered by a Loan Party which purports to grant a Lien in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, in each case as amended, amended and restated, supplemented or otherwise modified from time to time.

Senior Leverage Ratio ” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) the amount of Consolidated Funded Indebtedness of such Person and its Subsidiaries as of the end of such period (excluding any Subordinated Indebtedness of such Person and its Subsidiaries then outstanding) minus Qualified Cash of such Person and its Subsidiaries in excess of $2,000,000 as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for such period.

Senior Officer ” means the President, Chief Executive Officer, Chief Financial Officer or Chief Operating Officer of any Loan Party.

Settlement Period ” has the meaning specified therefor in Section 2.02(d)(i) hereof.

Solvent ” means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person on a going concern basis is not less than the total amount of the liabilities of such Person, (ii) the present fair salable value of the assets of such Person on a going concern basis is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (v) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital .

 

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Standard & Poor’s ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

Subordinated Indebtedness ” means Indebtedness of any Loan Party the terms of which are reasonably satisfactory to the Agents and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (a) by the execution and delivery of a subordination agreement, in form and substance reasonably satisfactory to the Agents, or (b) otherwise on terms and conditions (including, without limitation, subordination provisions, payment terms, interest rates, covenants, remedies, defaults and other material terms) reasonably satisfactory to the Agents; it being understood that the following terms in respect of such Indebtedness will be satisfactory to the Agents: (i) no cash principal payments prior to the maturity thereof and payment of cash interest permitted at commercially reasonable rate in absence of continuing Event of Default, (ii) matures at least 180 days after the Final Maturity Date, (iii) subject to customary limited exceptions, indefinite standstill period on the exercise of remedies (whether or not of a type available to unsecured creditors) until the Obligations are Paid in Full, and (iv) unsecured.

Subsidiary ” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.

Swap ” means any “swap” as defined in Section 1a(47) of the CEA and regulations thereunder other than (a) a swap entered into on, or subject to the rules of, a board of trade designated as a contract market under Section 5 of the CEA, or (b) a commodity option entered into pursuant to CFTC Regulation 32.3(a).

Swap Obligation ” means any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap which is also a Lender Provided Hedge Agreement.

Taxes ” has the meaning specified therefor in Section 2.09(a).

Termination Event ” means (a) any event that causes any Loan Party or any of its Subsidiaries to incur liability under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (b) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (c) the institution of proceedings by the PBGC to terminate an Employee Plan, or (d) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.

 

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Term Loan ” has the meaning specified therefor in Section 2.01(a)(ii).

“Term Loan A” has the meaning specified therefor in Section 2.01(a)(ii).

“Term Loan B” has the meaning specified therefor in Section 2.01(a)(ii).

Term Loan Commitment ” means, collectively, the sum of the amounts of the Lenders’ A Lender” means a Lender with a Term Loan Commitments and First Amendment Term Loan Commitments A .

“Term Loan B Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loan B to the Borrowers in the amount set forth in Schedule 1.01(A) hereto (as amended by Amendment No. 3), as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.

Term Loan B Lender ” means a Lender with a Term Loan B or a Term Loan B Commitment.

Term Loan Installment ” has the meaning assigned to such term in Section 2.03(b) Lender” means, collectively, the Term Loan A Lenders and the Term Loan B Lenders.

Term Loan Obligations ” means any Obligations with respect to the Term Loans (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Title Insurance Policy ” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Collateral Agent, together with all endorsements made from time to time thereto, issued by or on behalf of a title insurance company reasonably satisfactory to the Collateral Agent, insuring the Lien created by a Mortgage in an amount and on terms reasonably satisfactory to the Collateral Agent, delivered to the Collateral Agent.

Total Commitment ” means the sum of the Total Revolving Credit Commitment and the Total Term Loan Commitment.

Total Revolving Credit Commitment ” means an amount equal to Maximum Revolving Loan Amount in effect from time to time, and shall also mean, as the context may require, the collective obligations of all Revolving Loan Lenders pursuant to their respective Revolving Credit Commitments.

Total Term Loan Commitment ” means, collectively, the sum of the amounts of the Lenders’ Term Loan B Commitments.

 

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Transferee ” has the meaning specified therefor in Section 2.09(a).

TTM Consolidated EBITDA ” means, with respect to any Person for any period, the Consolidated EBITDA of such Person and its Subsidiaries for the trailing twelve-month period then ended.

UCP 600 ” has the meaning specified therefor in Section 3.02(b).

“Underground Toys” means Underground Toys Limited, a private limited company formed under the laws of England and Wales.

“Underground Toys Acquisition” means the acquisition by Funko UK of certain assets of Underground Toys pursuant to the Underground Toys APA.

“Underground Toys APA” means that certain Asset Purchase Agreement, dated as of December 22, 2016, by and among Funko UK, Underground Toys and the stockholders of Underground Toys, as in effect on the Amendment No. 3 Effective Date .

“Underground Toys Earnout” means the cash earnout to be paid in connection with the Underground Toys Acquisition pursuant to Section 3.7(b) of the Underground Toys APA.

Uniform Commercial Code ” has the meaning specified therefor in Section 1.04.

Unused Line Fee ” has the meaning specified therefor in Section 2.06(b).

USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

WARN ” has the meaning specified therefor in Section 6.01(z).

Section 1.02 Terms Generally . The definitions of terms herein shall apply equally to 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” 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.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) 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 hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

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Section 1.03 Certain Matters of Construction . References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders or by each Lender affected thereby or by all Lenders, as applicable. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent (or any subagent or designee or delegee of any Agent), any agreement entered into by any Agent (or any subagent or designee or delegee of any Agent) pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent (or any subagent or designee or delegee of any Agent) pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent (or any subagent or designee or delegee of any Agent), shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders (including each Bank Product Provider). Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to the actual knowledge of a Senior Officer of any Loan Party. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

Section 1.04 Accounting and Other Terms .

(a) Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP applied on a basis consistent with those used in preparing the Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Ultimate Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. Unless otherwise expressly provided herein, all financial calculations shall be performed with Inventory valued on a first-in, first-out basis and (ii) calculations shall be made so as to exclude (without duplication of any adjustments otherwise provided in the calculation of amounts and ratios) the effect of purchase accounting adjustments associated with the Acquisition or any Permitted Acquisition.

 

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(b) All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “ Uniform Commercial Code ”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.

Section 1.05 Time References; Notices . Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Agent, any Lender or the L/C Issuer, such period shall in any event consist of at least one full day. Any notice or report specified to be due hereunder on a date that is not a Business Day shall be due on next Business Day following such due date.

Section 1.06 Effectiveness of the Borrowers . The Buyer shall be the initial Borrower under this Agreement. Immediately upon consummation of the Funko Acquisition, the execution and delivery of the signature pages of the Borrowers to this Agreement shall become effective and Parent and Funko shall also become Borrowers.

ARTICLE II.

THE LOANS

Section 2.01 Commitments . (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth:

(i) each Each Revolving Loan Lender severally agrees to make Revolving Loans in Dollars to the Borrowers at any time and from time to time from the Effective Date to the Final Maturity Date, or until the earlier reduction of its Revolving Credit Commitment to zero in accordance with the terms hereof, in an aggregate principal amount of Revolving Loans at any time outstanding not to exceed the amount of such Lender’s Revolving Credit Commitment.

(ii) on On the Effective Date, the Lenders with Initial Term Loan Commitments made term loans ( collectively, the “ Initial Term Loan ”) to the Borrowers in an aggregate original principal amount equal to $175,000,000 . As of , and on the date of Amendment No. 1 Effective Date, the Lenders made the First Amendment Term Loan (the First Amendment Term Loan, together with the Initial Term Loan, are referred to herein collectively as the “Term Loan A”) to the Borrowers in an aggregate principal amount equal to $50,000,000. As of the Amendment No. 3 Effective Date, the aggregate outstanding

 

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principal balance of the Initial Term Loan A is $ 171,700,000 217,400,000 . Subject to the terms and conditions of this Agreement, on the Amendment No.  1 3 Effective Date each Term Loan B Lender with a First Amendment Term Loan B Commitment agrees (severally, not jointly or jointly and severally) to make term loans (collectively, the “ First Amendment Term Loan B ”, and together with the Initial Term Loan A , the “ Term Loan ”) to the Borrowers in an amount equal to such Term Loan B Lender’s Pro Rata Share of the First Amendment Term Loan B Commitment, which, for the sake of clarity, shall be an amount equal to $50,000,000 in the aggregate , such that, after giving effect to the making of such First Amendment Term Loan, the aggregate outstanding principal balance of the Term Loan is equal to $ 221,700,000 on the Amendment No.  1 Effective Date .

(b) Notwithstanding the foregoing:

(i) The aggregate principal amount of all Revolving Loans outstanding at any time to the Borrowers shall not exceed the lower of (A) the difference between (x) the Total Revolving Credit Commitment and (y) the aggregate Letter of Credit Obligations and (B) the difference between (x) the then current Borrowing Base and (y) the aggregate Letter of Credit Obligations.

(ii) Each Revolving Credit Commitment of each Lender shall automatically and permanently be reduced to zero on the Final Maturity Date. Within the foregoing limits, the Borrowers may borrow, repay and reborrow Revolving Loans, on or after the Effective Date and prior to the Final Maturity Date, subject to the terms, provisions and limitations set forth herein.

(iii) The aggregate principal amount of the First Amendment Term Loan B made on the Amendment No.  1 3 Effective Date shall not exceed the First Amendment Term Loan B Commitment. Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.

(iv) The aggregate principal amount of all Loans and Letter of Credit Obligations outstanding at any time to the Borrowers shall not exceed the Total Commitment.

Section 2.02 Making the Loans . (a) An Authorized Officer on behalf of the Administrative Borrower, as applicable, shall (I) give the Administrative Agent prior telephonic notice immediately confirmed in writing in substantially the form of Exhibit C hereto (a “Notice of Borrowing”), not later than (i) 12:00 noon (New York City time) on the date which is three (3) applicable Business Days prior to the date of a proposed LIBOR Rate Loan or (ii) 12:00 noon (New York City time) on the date of a proposed Reference Rate Loan on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan (which shall be denominated in Dollars), (ii) in the case of Loans requested on the Effective Date, whether such Loan is requested to be a Revolving Loan or the Term Loan, (iii) whether the Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of any such LIBOR Rate Loan, the initial Interest Period with respect thereto, (iv) the use of the proceeds of such proposed Loan, (v) the proposed borrowing date, which must be an applicable Business Day, and, with respect to the Term Loan B , must be

 

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the Effective Date or the Amendment No.  1 3 Effective Date. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from any Authorized Officer of Administrative Borrower designated in writing to the Administrative Agent. Each Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Loan on behalf of the Borrowers until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.”

(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith. Each Revolving Loan that is a LIBOR Rate Loan shall be made in a minimum amount of $1,000,000 and shall be in integral multiples of $250,000 in excess thereof. The Borrowers shall have not more than seven eight ( 7 8 ) LIBOR Rate Loans made to the Borrowers in effect at any given time. For the avoidance of doubt, each Revolving Loan that is a Reference Rate Loan shall not be required to be made in a minimum increment amount.

(c) (i) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the applicable Lenders simultaneously and proportionately to their Pro Rata Shares of the applicable Total Revolving Credit Commitment and Total Term Loan Commitment of each such Lender, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.

(ii) Notwithstanding any other provision of this Agreement, and in order to reduce the number of fund transfers among the Borrowers, the Agents and the Lenders, the Borrowers, the Agents and the Lenders agree that the Administrative Agent may (but shall not be obligated to), and the Borrowers and the Lenders hereby irrevocably authorize the Administrative Agent to, fund, on behalf of the Revolving Loan Lenders, pursuant to Section 2.01, subject to the procedures for settlement set forth in Section 2.02(d); provided , however , that (a) the Administrative Agent shall in no event fund any such Revolving Loans if the Administrative Agent shall have received written notice from the Collateral Agent or the Required Lenders on the Business Day prior to the date of such proposed Revolving Loan that one or more of the conditions precedent contained in Section 5.02 will not be satisfied at the time of such proposed Revolving Loan, and (b) the Administrative Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 5.02 have been satisfied. If the Administrative Borrower gives a Notice of Borrowing requesting a Revolving Loan, and the Administrative Agent elects not to fund such Revolving Loan, on behalf of the Revolving Loan Lenders, then promptly after receipt of the Notice of Borrowing requesting such a Revolving Loan, the Administrative Agent shall notify each Revolving Loan Lender of the specifics of such requested Revolving Loan and that it will not fund such requested

 

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Revolving Loan on behalf of such Revolving Loan Lenders. If the Administrative Agent notifies such Revolving Loan Lenders that it will not fund a requested Revolving Loan, on behalf of such applicable Revolving Loan Lenders, each such applicable Revolving Loan Lender shall make its Pro Rata Share of the requested Revolving Loan, available to the Administrative Agent, in immediately available funds, in the applicable Administrative Agent’s Account no later than 3:00 p.m. (New York City time) (provided that the Administrative Agent requests payment from such applicable Revolving Loan Lender not later than 1:00 p.m. (New York City time)) on the date of the proposed Revolving Loan. The Administrative Agent will make the proceeds of the Revolving Loans available to the Borrowers on the day of such proposed Revolving Loan by causing an amount, in immediately available funds, equal to the proceeds of all such Revolving Loans received by the Administrative Agent in the applicable Administrative Agent’s Account or the amount funded by the Administrative Agent on behalf of the applicable Revolving Loan Lenders to be deposited in an account designated by the Administrative Borrower.

(iii) If the Administrative Agent has notified the Revolving Loan Lenders, that the Administrative Agent, on behalf of the Revolving Loan Lenders, will not fund a particular Revolving Loan, pursuant to Section 2.02(c)(ii), the Administrative Agent may assume that each such Revolving Loan Lender has made such amount available to the Administrative Agent on such day and the Administrative Agent, in its sole discretion, may, but shall not be obligated to, cause a corresponding amount to be made available to the Borrowers on such day. If the Administrative Agent makes such corresponding amount available to the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by any such Revolving Loan Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made to the Borrowers, by the Administrative Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account.

(iv) Nothing in this Section 2.02(c) shall be deemed to relieve any Revolving Loan Lender from its obligations to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

(d) (i) With respect to all periods for which the Administrative Agent has funded Revolving Loans pursuant to Section 2.02(c), on Friday of each week, or if the applicable Friday is not a Business Day, then on the following Business Day, or such shorter period as the Administrative Agent may from time to time select (any such week or shorter period being herein called a “ Settlement Period ”), the Administrative Agent shall notify each Revolving Loan Lender, of the unpaid principal amount of the Revolving Loans outstanding as

 

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of the last day of each such Settlement Period. In the event that such amount is greater than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period (or, if there has been no preceding Settlement Period, the amount of the Revolving Loans made on the date of such Revolving Loan Lender’s initial funding), each Revolving Loan Lender shall promptly (and in any event not later than 2:00 p.m. (New York City time) if the Administrative Agent requests payment from such Lender not later than 1:00 p.m. (New York City time) on such day) make available to the Administrative Agent its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In the event that such amount is less than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period, the Administrative Agent shall promptly pay over to each Revolving Loan Lender its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In addition, if the Administrative Agent shall so request at any time when a Default or an Event of Default shall have occurred and be continuing, or any other event shall have occurred as a result of which the Administrative Agent shall determine that it is desirable to present claims against the Borrowers for repayment, each Revolving Loan Lender shall promptly remit to the Administrative Agent or, as the case may be, the Administrative Agent shall promptly remit to each Revolving Loan Lender sufficient funds to adjust the interests of the Revolving Loan Lenders in the then outstanding Revolving Loans to such an extent that, after giving effect to such adjustment, each such Revolving Loan Lender’s interest in the then outstanding Revolving Loans will be equal to its Pro Rata Share thereof. The obligations of the Administrative Agent and each Revolving Loan Lender under this Section 2.02(d) shall be absolute and unconditional. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans which have been funded by such Revolving Loan Lender.

(ii) In the event that any Revolving Loan Lender fails to make any payment required to be made by it pursuant to Section 2.02(d)(i), the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan by the Administrative Agent to the Borrowers for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account. Nothing in this Section 2.02(d)(ii) shall be deemed to relieve any Revolving Loan Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

 

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Section 2.03 Repayment of Loans; Evidence of Debt . (a) The outstanding principal of all Revolving Loans made to the Borrowers shall be due and payable on the Final Maturity Date.

(b) Amortization of Term Loan.

(i) (b) The outstanding principal amount of the Term Loan A shall be repayable in consecutive quarterly installments equal to $2,150,000 per quarter, with each such installment to be due and payable on the last day of each quarter commencing on March 31, 2016 until the Final Maturity.

(ii) The outstanding principal amount of the Term Loan B shall be repayable in consecutive monthly installments equal to $1,000,000 per month, with each such installment to be due and payable on the last day of each month commencing on February 28, 2017 until the Final Maturity; provided, that if the Administrative Borrower delivers a written notice to the Administrative Agent not less than five (5) Business Days prior to the date of any installment in respect of the Term Loan B that is due and payable on or prior to December 31, 2017, advising the Administrative Agent that the Borrowers have elected to forego such installment payment, then the Borrowers shall pay to the Administrative Agent , on behalf of the Term Loan B Lenders (ratably in accordance with their Pro Rata Share of the Term Loan B), a fee in the amount of $110,000 (the “Installment Waiver Fee”), on or prior to the date such installment payment would have been due and payable, and upon the Administrative Agent’s receipt of such fee, the installment due and payable on such date shall be permanently waived, without further action or writing.

( iii ) The outstanding unpaid principal amount of the Term Loan and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (i) the termination of the Total Revolving Credit Commitment, (ii) the date of the acceleration of the Term Loans in accordance with the terms hereof and (iii) the Final Maturity Date.

(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(e) The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided 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 obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement.

 

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(f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a form furnished by the Collateral Agent and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.04 Interest .

(a) Revolving Loans . Prior to the Amendment No. 1 Effective Date, subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan, shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each such Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus 2.00%. Each such Revolving Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for such Loan plus 2.50%. From and after the Amendment No. 1 Effective Date, each Revolving Loan shall only be a LIBOR Rate Loan and all Revolving Loans shall bear interest on the principal amount of Revolving Loans from time to time outstanding at a rate per annum equal to the LIBOR Rate plus 2.50%.

(b) Term Loan .

(i) Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan A or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each portion of the Term Loan A that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan A until repaid, at a rate per annum equal to the Reference Rate plus 6.25%. Each portion of the Term Loan A that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan A until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for the Term Loan A (or such portion thereof) plus 7.25%.

(ii) Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan B or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each portion of the Term Loan B that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan B until repaid, at a rate per annum equal to the Reference Rate plus 9.00%. Each portion of the Term Loan B that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan B until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for the Term Loan B (or such portion thereof) plus 10.00%.

 

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(c) Default Interest . To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the election of either Agent or the Required Lenders and notice to the Administrative Borrower of such election following the occurrence and during the continuance of an Event of Default (which election and notification shall not be required with respect of any Event of Default described in Section 9.01(a), (f) or (g)), as of the date of any such Event of Default (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower), (i) the principal of, and all accrued and unpaid interest on, all Loans, fees, indemnities, outstanding Letter of Credit Obligations or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower) until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate, and (ii) the Letter of Credit Fees shall be increased by two (2.0%) percentage points above the per annum rate otherwise applicable hereunder. All interest and other amounts payable pursuant to subclauses (i) and (ii) of this Section 2.04(e) shall be payable on demand.

(d) Interest Payment . Interest on each Loan shall be payable on each Interest Payment Date, commencing on the first Interest Payment Date following the month in which such Loan is made and at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder.

(e) General . All interest and fees shall be computed on the basis of a year of 360 days (except that interest on Reference Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year)) for the actual number of days, including the first day but excluding the last day, elapsed.

Section 2.05 Reduction of Commitment; Prepayment of Loans .

(a) Reduction of Commitments.

(i) Revolving Credit Commitments . The Total Revolving Credit Commitment shall terminate on the Final Maturity Date. The Borrowers may, without premium or penalty, reduce the Total Revolving Credit Commitment to an amount (which may be zero) not less than the sum of (A) the aggregate unpaid principal amount of all Revolving Loans then outstanding, (B) the aggregate principal amount of all Revolving Loans not yet made as to which a Notice of Borrowing has been given by the Administrative Borrower under Section 2.02, (C) the Letter of Credit Obligations at such time and (D) the stated amount of all Letters of Credit not yet issued as to which a request has been made and not withdrawn; provided that in no event shall the Borrowers be permitted to reduce the Total Revolving Credit Commitment to an amount less than $25,000,000 (other than a permanent reduction of the Total Revolving Credit Commitment to zero). Each such reduction (1) shall be in an amount which is an integral multiple of $1,000,000 (unless the Total Revolving Credit Commitment in effect immediately prior to such reduction is less than $1,000,000), (2) shall be made by providing not less than 5

 

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Business Days’ prior written notice to the Administrative Agent, (3) shall be irrevocable and (4) shall be accompanied by the payment of the Applicable Prepayment Premium, if any, payable in connection with such reduction of the Total Revolving Credit Commitment (which shall be paid to Administrative Agent for the benefit of the Revolving Loan Lenders and shall be allocated among the Revolving Loan Lenders as they may separately agree among themselves). Once reduced, the Total Revolving Credit Commitment may not be increased. Each such reduction of the Total Revolving Credit Commitment shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance its Pro Rata Share.

(ii) Term Loan . The Total Term Loan Commitment shall terminate at 5:00 p.m. (New York City time) on the Amendment No. 3 Effective Date.

(b) Optional Prepayment .

(i) Revolving Loans . At any time and from time to time, the Borrowers may prepay the principal of any Revolving Loan, in whole or in part. Each prepayment made pursuant to this clause (b)(i) made in connection with a reduction of the Total Revolving Credit Commitment pursuant to clause (a)(i) above shall be accompanied by the payment of the Applicable Prepayment Premium, if any.

(ii) Term Loans . The Borrowers may, at any time and from time to time, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, prepay the principal of the Term Loans, in whole or in part, so long as, after giving pro forma effect to such proposed payment, the Borrowers shall have Availability on the date of such proposed payment, and also average Availability over the 30 days ending with the date of such proposed payment (assuming that such proposed payment (and any Revolving Loans drawn to fund such proposed payment) had been made on the first day of such 30 day period), of at least $10,000,000. Each prepayment made pursuant to this clause (b)(ii) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid and (B) the Applicable Prepayment Premium, if any, payable in connection with such prepayment of the Term Loans. Each such prepayment shall be applied , at the Borrower’s option, ratably to either the Term Loan A or the Term Loan B (or to both) against the remaining installments of principal due thereon until Paid in Full, at the Borrowers’ option, either in the order of maturity as to the installments due with respect to the applicable Term Loans Loan or in the inverse order of maturity as the Administrative Borrower may elect and designate in writing.

(iii) Termination of Agreement . Notwithstanding anything to the contrary in this Section 2.05, upon at least ten (10) days prior written notice to the Administrative Agent, the Administrative Borrower may terminate this Agreement by Paying in Full to the Administrative Agent the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement, and the Lenders’ obligations to extend credit hereunder shall terminate concurrently with such repayment. The Borrowers shall be obligated to Pay in Full the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement on the date set forth as the date of termination of this Agreement in such notice; provided that such notice of termination may be rescinded (and/or updated to provide a new payoff date) by the Administrative Borrower if any transaction involving the refinancing or repayment of the Obligations fails to close.

 

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(c) Mandatory Prepayment .

(i) Overadvances . The Borrowers will not later than five (5) Business Days after the occurrence thereof, prepay the Revolving Loans or provide Cash Collateral up to the outstanding amount of the Letter of Credit Obligations at any time when the aggregate principal amount of all Revolving Loans plus the outstanding amount of all Letter of Credit Obligations exceeds the Borrowing Base, to the full extent of any such excess. If at any time after the Borrowers have complied with the first sentence of this Section 2.05(c)(i), the aggregate Letter of Credit Obligations are greater than the then current Borrowing Base, the Borrowers shall provide Cash Collateral of such excess to the Administrative Agent. Such Cash Collateral shall be deposited in a bank account subject to a Cash Management Agreement in favor of the Collateral Agent and, provided that no Event of Default shall have occurred and be continuing, returned to the Borrowers, at such time as (x) the aggregate Letter of Credit Obligations plus the aggregate principal amount of all outstanding Revolving Loans no longer exceeds the Borrowing Base and (y) the aggregate Letter of Credit Obligations no longer exceed the Letter of Credit Sublimit, as determined by the Administrative Agent.

(ii) Commitment Termination . The Borrowers will immediately prepay the outstanding principal amount of the Term Loans in the event that the Total Revolving Credit Commitment is terminated in accordance with the terms hereof for any reason.

(iii) Cash Dominion . Subject to Section 4.01, at such time as the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d), the Administrative Agent shall on each Business Day apply all funds transferred to or deposited in the Administrative Agent’s Account to the payment, in whole or in part, of the Revolving Loans (or, in the event the Revolving Loans have been paid in full, to the Cash Collateralization of any outstanding Letters of Credit).

(iv) Excess Cash Flow . Within five (5) days of the date on which audited annual financial statements are required to be delivered pursuant to Section 7.01(a)(iii) (the “ ECF Due Date ”), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ending on December 31, 2016 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii) , five (5) days after the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii) , the Borrowers shall prepay the outstanding principal amount of the Loans in an amount equal to the result of (to the extent positive): (A) 50% (or (x) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.75:1.00 but greater than or equal to 2.00:1.00, 25% or (y) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.00:1.00, 0%) of the Excess Cash Flow of the Ultimate Parent and its Subsidiaries for such Fiscal Year; provided , that, until such time that at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), (1) the percentage in subclause (A) above shall be increased from 50% to 60% and (2) the percentage in clause (A)(x) above

 

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shall be increased from 25% to 35%, minus (B) at any time after at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), the aggregate principal amount of all additional voluntary prepayments of the Term Loans made during such Fiscal Year (or during the 90 days prior to the ECF Due Date) but only to the extent such prepayments (x) were applied against the remaining installments of principal in respect of the Term Loan Installments in the order required pursuant to Section 2.05(d) in relation to prepayments required under this clause (iv) and (y) were not previously applied to reduce any other payment pursuant this clause (iv).

(v) Dispositions . Subject to Section 2.05(c)(viii) below, not later than one (1) Business Day following any Disposition by any Loan Party pursuant to Sections 7.02(c)(ii)(B) and 7.02(c)(ii)(C), the Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by the Loan Parties (and not paid to the Administrative Agent as a prepayment of the applicable Loans) shall exceed for all such Dispositions, $500,000 in any Fiscal Year. Nothing contained in this Section 2.05(c)(v) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).

(vi) Debt Issuances . Not later than one (1) Business Day following the issuance or incurrence by any Loan Party of any Indebtedness (other than Permitted Indebtedness), the Borrowers shall prepay the outstanding amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith The provisions of this Section 2.05(c)(vi) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.

(vii) Casualty and Condemnation. Subject to Section 2.05(c)(viii) below, not later than one (1) Business Day following the receipt by any Loan Party of any casualty insurance (other than business interruption insurance) or condemnation proceeds in respect of any Collateral in excess of $500,000 in any Fiscal Year, the Borrowers shall prepay the outstanding principal of the Obligations in accordance with clause (d) below in an amount equal to 100% of such insurance or condemnation proceeds, net of any reasonable expenses incurred in collecting such insurance or condemnation proceeds, provided that the threshold referred to above shall not be applicable to limit repayment obligations under this Section 2.05(vii) at any time when an Event of Default has occurred and is continuing.

(viii) Reinvestment Rights . Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party in connection with a Disposition or the receipt of insurance proceeds or condemnation awards that are required to be used to prepay the Obligations pursuant to Section 2.05(c)(v) or 2.05(c)(vii), as the case may be, up to $5,000,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions (except that the foregoing limitation shall not apply to proceeds received from the Disposition of obsolete, worn out or surplus equipment in the ordinary course pursuant to Section 7.02(c)(ii)(B) hereof) (collectively, the “ Reinvestment Eligible Funds ”) shall not be required to be so used to prepay the Obligations to the extent that such Reinvestment Eligible Funds are used to purchase,

 

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replace, repair, restore or otherwise acquire properties or assets used in such Person’s business, provided that, (i) no Default or Event of Default has occurred and is continuing on the date such Person receives such Reinvestment Eligible Funds, (ii) the Administrative Borrower delivers a certificate to the Administrative Agent pursuant to Section 7.01(a)(iv), (iii) such Reinvestment Eligible Funds are deposited in a Cash Management Account, and (iv) upon the earlier of (a) the expiration of 180-day period following the receipt of such Reinvestment Eligible Funds or (b) the occurrence of a Default or an Event of Default, such Reinvestment Eligible Funds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(v) or Section 2.05(c)(vii) as applicable.

(d) Application of Payments . Each prepayment pursuant to subsections (c)(iii),(c)(iv), (c)(v), (c)(vi), (c)(vii) and (c)(viii) above shall be applied, first , to the applicable Term Loans, and second , to the Revolving Loans, except that proceeds of casualty insurance and non-ordinary course dispositions with respect to Inventory shall be applied, first, to the Revolving Loans (without any reduction in the Total Revolving Credit Commitment or any applicable Revolving Credit Commitment) and, second, to the applicable Term Loans. Prepayments of the Term Loan Loans pursuant to Section 2.05(c) shall be applied against the next four quarters of scheduled amortization in respect of the Term Loan (ratably to the Term Loan A and the Term Loan B) , with the balance applied ratably to the Term Loan A and the Term Loan B in the inverse order of maturity.

Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, prepayments required under Section 2.05(c) shall continue to be applied in the manner set forth in this Section 2.05(d), unless the Administrative Agent has elected to, or has been directed by the Collateral Agent to, apply payments and other proceeds of Collateral in accordance with Section 4.03(b), in which case prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b).

(e) Interest and Fees . Any prepayment made pursuant to this Section 2.05 (other than prepayments made pursuant to subsections (c)(i) and (c)(iii) of this Section 2.05) shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) if applicable pursuant to Section 2.06(e) , the Applicable Prepayment Premium, payable in connection with such prepayment of the Loans and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero at a time when the Total Revolving Credit Commitment has been terminated, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.

(f) Cumulative Prepayments . Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.

Section 2.06 Fees .

(a) Closing Fee . On or prior to the Effective Date Letter. As and when due and payable under the terms of the Fee Letter , the Borrowers shall pay to the Administrative Agent for the account of the Lenders, in accordance with a written agreement among such Lenders, a non-refundable closing fee (the “Closing Fee”) equal to $6,500,000, which shall be deemed fully earned when paid. the fees set forth in the Fee Letter.

 

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(b) Unused Line Fee . From and after the Effective Date and until the Final Maturity Date, the Borrowers shall pay to the Administrative Agent for the account of the Revolving Loan Lenders, to be allocated among the Revolving Loan Lenders as they may separately agree among themselves, an unused line fee in Dollars (the “ Unused Line Fee ”), which shall accrue at the rate per annum of 0.375% on the average daily excess, if any, of the Maximum Revolving Loan Amount over the average principal amount of all Revolving Loans and Letter of Credit Obligations outstanding from time to time and shall be payable quarterly in arrears on the first day of each calendar quarter commencing January 1, 2016 and on the Final Maturity Date (and, for the avoidance of doubt, and without limiting the generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Unused Line Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Unused Line Fee so charged on any date).

(c) Letter of Credit Fees . The Borrowers shall pay (A) to the Administrative Agent, for the ratable benefit of the Revolving Loan Lenders, a Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in clause (B) below) which shall accrue at a rate per annum equal to the L/C Fee Rate in effect at such time, times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter commencing January 1, 2016 and on the Final Maturity Date, and (B) to the Administrative Agent, for the benefit of the L/C Issuer, a fronting fee of one quarter of one percent (0.25%) per annum times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter and on the Final Maturity Date, together with any and all customary administrative, issuance, amendment, payment and negotiation charges (as per the L/C Issuer’s standard fee schedule) with respect to any Letters of Credit and all fees and expenses as agreed upon by the L/C Issuer and the Borrowers in connection with any Letter of Credit, including in connection with the opening, amendment or renewal of any such Letter of Credit and any acceptances created thereunder and shall reimburse Administrative Agent for any and all fees and expenses, if any, paid by the Administrative Agent to the L/C Issuer, which charges and fees shall be payable on demand or as otherwise mutually agreed upon by the Administrative Agent and the Borrowers. All such charges shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Any such charge in effect at the time of a particular transaction shall be the charge for that transaction, notwithstanding any subsequent change in the L/C Issuer’s prevailing charges for that type of transaction;

 

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(all of the foregoing fees and charges in paragraphs collectively, the “ Letter of Credit Fees ”). All such Letter of Credit Fees shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Without limiting the generality of the provisions of Section 4.01, the parties hereto agree that, for administrative convenience, Administrative Agent may charge the Loan Account of the Borrowers with the amount of a Revolving Loan made as a Reference Rate Loan on the date any such Letter of Credit Fees with respect to any Letter of Credit are due and payable for the purpose of paying such Letter of Credit Fees; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge.

(d) Loan Servicing Fee . From and after the Effective Date and until the later of (i) the Final Maturity Date and (ii) the date on which all Obligations are Paid in Full, the Borrowers shall pay to the Administrative Agent for the account of the Agents a non-refundable loan servicing fee (the “ Loan Servicing Fee ”) equal to $20,000 each quarter, which shall be payable quarterly in advance on the Effective Date and on the first day of each calendar quarter thereafter, commencing on January 1, 2016 (in the case of the fee paid on the Effective Date, it shall be payable ratably based on the number of days remaining in the calendar quarter in which the Effective Date occurs). For the avoidance of doubt, and without limiting the generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Loan Servicing Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Loan Servicing Fee so charged on any date.

(e) Applicable Prepayment Premium . In the event of the full or partial termination of this Agreement and repayment of the Obligations at any time prior to the Final Maturity Date, for any reason, including (i) termination upon the election of the Required Lenders to terminate after the occurrence and during the continuation of an Event of Default (or, in the case of the occurrence of any Event of Default described in Section 9.01(f) or Section 9.01(g) with respect to any Loan Party, automatically upon the occurrence thereof), (ii) foreclosure and sale of Collateral, (iii) sale of the Collateral in any Insolvency Proceeding, or (iv) restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Agents and the Lenders, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their respective Pro Rata Shares, the Applicable Prepayment Premium, measured as of the date of such termination. Notwithstanding the foregoing, no Applicable Prepayment Premium shall be due and owing (a) in connection with a Term Loan prepayment resulting from the events described in Section 2.05(c)(iv) or (vii), (b) to any Lender that finances (or any Affiliate of such Lender that finances) the voluntary termination of this Agreement pursuant Section 2.05(b)(iii), (c) prepayments with the proceeds of Permitted Cure Stock, (d) prepayments of Revolving Loans that are not accompanied by a termination of the Revolving Credit Commitment, (e) any

 

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prepayment of the Term Loan pursuant to Section 2.05(b)(ii) during the first eighteen (18) months after the Effective Date, to the extent the aggregate principal amount of all such prepayments during such period is less than $10,000,000 and , (f) in connection with any voluntary prepayment of the Term Loans pursuant to Section 2.05(b)(ii) to the extent such prepayment occurs within 90 days prior to the date on which Excess Cash Flow is required to be applied to the Loans in accordance with Section 2.05(c)(iv); provided that the Applicable Prepayment Premium shall be due and owing on any portion of such voluntary prepayment described in this clause (f) that exceeds the amount of the corresponding Excess Cash Flow payment with respect to which such voluntary prepayment is deducted , and (g) in connection with any prepayment of the Term Loan B from the proceeds of a Qualified Initial Public Offering or a Private Placement .

(f) Audit and Collateral Monitoring Fees . The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the Agents may visit any or all of the Loan Parties and/or conduct certain audits, inspections, appraisals, valuations and/or field examinations for which the Borrowers will be obligated to reimburse expenses of the Agents and such representatives. The Borrowers agree to pay such expenses, which shall be calculated on the basis of (i) $1,000 per day per examiner plus the examiner’s reasonable out-of-pocket costs and expenses incurred in connection with all such visits, audits, inspections, appraisals, valuations and field examinations, (ii) a supervisory review fee of $1,300 per each such audit, inspection, valuation or field examination and (iii) the cost of all visits, audits, inspections, appraisals, valuations and field examinations conducted by a third party on behalf of the Agents. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to pay the fees, costs and expenses for more than three (3) such audits, inspections, valuations and/or field examinations described in clauses (i), (ii) and (iii), in each case conducted during each consecutive twelve (12) month period during the term of this Agreement, provided that Borrowers acknowledge that Administrative may elect to conduct such three (3) audits, inspections, valuations or field examinations with respect to Borrowers during any such consecutive twelve (12) month period at different times, and further provided that, nothing contained in this sentence or otherwise in this Agreement limiting Borrowers’ obligations to pay the fees, costs and expenses of such audits, inspections, valuations or field examinations shall limit the rights of Agents pursuant to the first sentence of this Section 2.06(f) and Section 7.01(f), in each case, if conducted at their own expense. In addition, (x) at any time after the first anniversary of this Agreement, Administrative Agent, acting in its Permitted Discretion, may elect to reduce the number of audits, inspections, valuations and/or field examinations per twelve (12) month period with respect to which Borrowers shall be liable for the fees, costs and expenses thereof (absent the existence of any Event of Default) from three (3) to two (2) if, to the extent and only continuing for so long as such reduction is consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies, and (y) absent the existence of any Event of Default, Agent, acting in its Permitted Discretion, shall use commercially reasonable efforts to endeavor to schedule its periodic audits, inspections, valuations and/or field examinations in a manner to minimize any adverse impact on the operations of Loan Parties to the extent consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies.

 

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Section 2.07 LIBOR Option .

(a) In lieu of having interest charged at the rate based upon the Reference Rate, the Borrowers shall have the option (the “LIBOR Option”) to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate. Each Interest Period of a LIBOR Rate Loan made to Borrowers shall commence on the date such LIBOR Rate Loan is made and shall end on such date as the Borrower may elect as set forth in subsection 2.02(a) above; provided that no Interest Period shall end after the last day of the Final Maturity Date; provided, further, from and after the Amendment No. 1 Effective Date, notwithstanding anything in this Agreement to the contrary, all Revolving Loans shall have interest charged based upon the LIBOR Rate.

(b) The Administrative Borrower shall elect the initial Interest Period applicable to a LIBOR Rate Loan made to the Borrowers by its Notice of Borrowing given to the Administrative Agent pursuant to Section 2.02(a) or by its notice of conversion given to the Administrative Agent pursuant to Section 2.07(c), as the case may be. The Administrative Borrower shall elect the duration of each succeeding Interest Period by giving irrevocable written notice to the Administrative Agent of such duration not later than 11:00 a.m. (New York time) on the day which is not less than three (3) Business Days prior to the last day of the then current Interest Period applicable to such LIBOR Rate Loan. If the Administrative Agent does not receive timely notice of the Interest Period elected by the Administrative Borrower, the Administrative Borrower shall be deemed to have elected to convert such LIBOR Rate Loan to a Reference Rate Loan, subject to Section 2.07(c) herein below.

(c) The Administrative Borrower may, on the last Business Day of the then current Interest Period applicable to any outstanding LIBOR Rate Loan made to the Borrowers, or on any Business Day with respect to Revolving Loans or any portion of the Term Loan that are Reference Rate Loans, convert any such loan into a loan of another type (i.e., a Reference Rate Loan or a LIBOR Rate Loan) in the same aggregate principal amount, provided that any conversion of a LIBOR Rate Loan made to the Borrowers not made on the last Business Day of the then current Interest Period applicable to such LIBOR Rate Loan shall be subject to Section 2.08. If a Borrower desires to convert a Loan, the Administrative Borrower shall give the Administrative Agent a LIBOR Notice by no later than 11:00 a.m. (New York City time) (i) on the day which is three (3) Business Days’ prior to the date on which such conversion is to occur with respect to a conversion from a Reference Rate Loan to a LIBOR Rate Loan, or (ii) on the day which is one (1) Business Day prior to the date on which such conversion is to occur with respect to a conversion from a LIBOR Rate Loan to a Reference Rate Loan, specifying, in each case, the date of such conversion, the Loans to be converted and the duration of the first Interest Period therefore.

(d) Subject to Section 2.05(b), the Borrowers may prepay the LIBOR Rate Loans in whole at any time or in part from time to time, together with accrued interest on the principal being prepaid to the date of such repayment in the case of any LIBOR Rate Loan made to the Borrowers, and the Administrative Borrower shall specify the date of prepayment of Loans which are LIBOR Rate Loans, the Loan to which such prepayment is to be applied and the amount of such prepayment.

 

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(e) [Intentionally omitted.]

(f) Notwithstanding any other provision hereof, if any Requirement of Law, or Change in Law, shall make it unlawful for any Lender (for purposes of this subsection (f), the term “ Lender ” shall include any Lender and the office or branch where any Lender or any corporation or bank controlling such Lender makes or maintains any LIBOR Rate Loans) to make or maintain its LIBOR Rate Loans, the obligation of such Lender to make LIBOR Rate Loans hereunder shall forthwith be cancelled and the Borrowers shall, if any affected LIBOR Rate Loans are then outstanding, promptly upon request from the Administrative Agent, either pay all such affected LIBOR Rate Loans or convert such affected LIBOR Rate Loans into loans of another type. If any such payment or conversion of any LIBOR Rate Loan denominated in US Dollars made to the Borrowers is made on a day that is not the last day of the Interest Period applicable to such LIBOR Loan, the Borrowers shall pay the Administrative Agent, upon the Administrative Agent’s request, such amount or amounts as may be necessary to compensate Lenders for any Funding Losses sustained or incurred by Lenders in respect of such LIBOR Rate Loan as a result of such payment or conversion, including (but not limited to) any interest or other amounts payable by Lenders to lenders of funds obtained by Lenders in order to make or maintain such LIBOR Rate Loan. A certificate as to any additional amounts that describes in reasonable detail the calculations thereof payable pursuant to the foregoing sentence submitted by Lenders to the Administrative Borrower shall be conclusive absent manifest error.

(g) In the event that any Agent or any Lender shall have determined that:

(i) reasonable means do not exist for ascertaining the LIBOR Rate applicable pursuant to Section 2.02(a) hereof for any Interest Period; or

(ii) dollar deposits in the relevant amount and for the relevant maturity are not available in the London interbank market, with respect to an outstanding LIBOR Rate Loan, a proposed LIBOR Rate Loan, or a proposed conversion of a Reference Rate Loan into a LIBOR Rate Loan; or

(iii) at any time that a Default or an Event of Default has occurred and is continuing,

then upon notice of same being given to the Administrative Borrower, the Administrative Agent shall give such Administrative Borrower prompt written, telephonic or facsimile notice of such determination. If such notice is given, (i) any such requested LIBOR Rate Loan shall be made as a Reference Rate Loan, unless such Administrative Borrower shall notify the Administrative Agent no later than 1:00 p.m. (New York City time) two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of LIBOR Rate Loan, (ii) any Reference Rate Loan or LIBOR Rate Loan which was to have been converted to an affected type of LIBOR Rate Loan shall be continued as or converted into a Reference Rate Loan, or, if such Administrative Borrower shall notify the Administrative Agent, no later than 11:00 a.m. (New York City time) two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of LIBOR Rate Loan, and (iii) any outstanding affected LIBOR Rate Loans shall be converted into a Reference Rate

 

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Loan at the end of the applicable Interest Period. Until such notice has been withdrawn, the Lenders shall have no obligation to make an affected type of LIBOR Rate Loan or maintain outstanding affected LIBOR Rate Loans and the Borrowers shall not have the right to convert a Reference Rate Loan or an unaffected type of LIBOR Rate Loan into an affected type of LIBOR Rate Loan.

(h) Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required actually to acquire LIBOR deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. Except for Section 2.07(g)(ii), the provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation as to which interest is accruing at the LIBOR Rate by acquiring LIBOR deposits for each Interest Period in the amount of the LIBOR Rate Loans.

Section 2.08 Funding Losses . In connection with each LIBOR Rate Loan, the Borrowers shall indemnify, defend, and hold the Agents and the applicable Lenders harmless against any loss, cost, or expense incurred by any Agent or any such Lender as a result of (a) the payment of any principal of any such LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of a Default or an Event of Default), (b) the conversion of any such LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow, convert, continue or prepay any such LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “ Funding Losses ”). Funding Losses shall, with respect to any Agent or any Lender, be deemed to equal the amount reasonably determined by such Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan excluding any loss of margin above the LIBOR Rate had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of an Agent or a Lender delivered to the Administrative Borrower setting forth a calculation in reasonable detail any amount or amounts that such Agent or such Lender is entitled to receive pursuant to this 2.08 shall be conclusive absent manifest error.

Section 2.09 Taxes . (a) Any and all payments by any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (“ Taxes ”), except as required by applicable law. If any applicable law requires the deduction or withholding of any Taxes from any such payment, then the applicable Loan Party or the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Taxes are Indemnified Taxes, then the sum payable by the Loan Party shall be increased as necessary so that after such

 

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deduction or withholding has been made (including such deduction or withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. For this purpose, “Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any Obligation of any Loan Party, other than Excluded Taxes. For this purpose, “Excluded Taxes” means Taxes described in Section 2.09(e) below, and:

(A) taxes imposed on net income (or taxes imposed in lieu thereof) or branch profits taxes imposed on or with respect to any Agent, any Lender or the L/C Issuer (or any transferee or assignee thereof, including a participation holder (any such entity, a “ Transferee” )) or, in the case of a pass-through entity, any of its beneficial owners by the United States or the jurisdiction in which such Person is organized or has its principal lending office, or with which such Person has any other present or former connection (other than a connection arising solely from entering into, receiving any payment under or enforcing its rights under this Agreement or any other Loan Document),

(b) In addition, each Loan Party agrees to pay to the relevant Governmental Authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (“ Other Taxes ”). Each Loan Party shall deliver to each Agent, each Lender and the L/C Issuer (or Transferee) official receipts in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such Indemnified Taxes or Other Taxes.

(c) The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent, each Lender and the L/C Issuer harmless from and against Indemnified Taxes and Other Taxes (including, Indemnified Taxes and Other Taxes imposed on any amounts payable under this Section 2.09) paid by such Person, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes.

(d) (i) Each Lender (or Transferee) with respect to the Obligations that is organized under the laws of a jurisdiction outside the United States (a “ Non-U.S. Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a properly completed and duly executed copy of either U.S. Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including the appropriate attachments thereto) or any subsequent versions thereof or successors thereto, in each case claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax and payments of interest hereunder along with any other appropriate documentation establishing such exemption or reduction. In addition, in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the IRC such Non-U.S. Lender hereby represents to the Agents and the Borrower that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the IRC is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the IRC) of either Parent, the Borrowers or the Guarantors and is not a controlled foreign corporation related to

 

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either Parent, the Borrowers or the Guarantors (within the meaning of Section 864(d)(4) of the IRC), and such Non-U.S. Lender agrees that it shall promptly notify the Administrative Agent (or, in the case of a participant, the Lender granting the participation only) in the event any such representation is no longer accurate. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a different lending office (a “ New Lending Office ”). In addition, such Non-U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable. If the lapse of time or a change in circumstances renders a previous certification obsolete or inaccurate in any material respect, the Non-U.S. Lender shall deliver to the Administrative Agent (who shall promptly deliver a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) new, properly completed and duly executed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation as may be required to establish such Non-U.S. Lender’s entitlement to a continued exemption from or reduction in United States withholding tax if such Non-U.S. Lender or beneficial owner continues to be so entitled.

(ii) Each Lender (or Transferee) and Agent that is a “United States person” (within the meaning of Section 7701(a)(30) of the IRC) (each a “ Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a complete and duly executed copy of Internal Revenue Service Form W-9 or successor form certifying that such Lender (or Transferee) is not subject to United States backup withholding tax on the date it becomes a party to this Agreement. Such forms shall be delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder). In addition, such U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable.

(iii) Notwithstanding any other provision of this Section 2.09, a Lender shall not be required to deliver any form pursuant to this Section 2.09(d) that such Lender is not legally able to deliver. Upon written request by the Administrative Borrower, the Administrative Agent shall provide to the Administrative Borrower any U.S. Internal Revenue Service Form received by the Administrative Agent pursuant to clauses (d)(i) and (d)(ii) above.

(e) The Loan Parties shall not be required to indemnify any Lender, or pay any additional amounts to any Lender, in respect of United States Federal withholding or backup withholding tax pursuant to this Section 2.09 to the extent that (i) the obligation to withhold amounts with respect to United States Federal withholding or backup withholding tax existed on the date such Lender became a party to this Agreement (or, in the case of a Transferee that is a participation holder, on the date such participation holder became a Transferee hereunder) or, with respect to payments to a New Lending Office, the date such Lender designated such New Lending Office with respect to a Loan; provided , however , that this clause (i) shall not apply to the extent the indemnity payment or additional amounts any Transferee, or

 

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Lender (or Transferee) through a New Lending Office, would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the Person making the assignment, participation or transfer to such Transferee, or Lender (or Transferee) making the designation of such New Lending Office, would have been entitled to receive in the absence of such assignment, participation, transfer or designation, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender or the Administrative Agent to comply with the provisions of clause (d) above, or (iii) the withholding is imposed pursuant to sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement (and any amended or successor version that is substantively comparable and not materially more on onerous to comply with and any current or future regulations or official interpretation thereof (“ FATCA ”).

(f) Any Agent, any Lender or the L/C Issuer (or Transferee) claiming any indemnity payment or additional payment amounts payable pursuant to this Section 2.09 shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Administrative Borrower or to change the jurisdiction of its applicable lending office if the making of such a filing or change would avoid the need for or reduce the amount of any such indemnity payment or additional amount that may thereafter accrue, would not require such Agent, such Lender or the L/C Issuer (or Transferee) to disclose any information such Agent, such Lender or the L/C Issuer (or Transferee) deems confidential and would not, in the sole determination of such Agent, such Lender or the L/C Issuer (or Transferee), be otherwise disadvantageous to such Agent, such Lender or the L/C Issuer (or Transferee).

(g) If any Agent, any Lender or the L/C Issuer (or Transferee) determines in its good faith that it has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 2.09, it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section 2.09 with respect to the Indemnified Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of such Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Agent or such Lender (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Loan Party or any other Person.

(h) FATCA . If a payment made to a Lender under any Loan Document would be subject to United States federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent such

 

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documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent as may be necessary for the Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (h), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(i) The obligations of the parties under this Section 2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.10 Increased Costs and Reduced Return . (a) If any Lender, any Agent or the L/C Issuer shall have determined that any Change in Law shall (i) subject such Agent, such Lender or the L/C Issuer, or any Person controlling such Agent, such Lender or the L/C Issuer to any tax, duty or other charge with respect to this Agreement or any Loan made by such Agent or such Lender or any Letter of Credit issued by the L/C Issuer, or change the basis of taxation of payments to such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer of any amounts payable hereunder (except for Indemnified Taxes and Excluded Taxes), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan, any Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer or (iii) impose on such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer any other condition regarding this Agreement or any Loan or Letter of Credit, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Agent, such Lender or the L/C Issuer of making any Loan, issuing, guaranteeing or participating in any Letter of Credit, or agreeing to make any Loan or issue, guaranty or participate in any Letter of Credit, or to reduce any amount received or receivable by such Agent, such Lender or the L/C Issuer hereunder, then, upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such increased costs or reductions in amount; provided , however , that notwithstanding anything to the contrary in this Section 2.10(a), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(a) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(b) If any Agent, any Lender or the L/C Issuer shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer, and such Agent, such Lender or the L/C Issuer determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, Letters of Credit issued or any guaranty or participation with respect thereto, such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Agent’s, such Lender’s or the L/C Issuer’s such other controlling Person’s capital to a level below that which such Agent, such Lender or the L/C Issuer or such

 

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controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, Letters of Credit issued, or any guaranty or participation with respect thereto or any agreement to make Loans, to issue Letters of Credit or such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration, such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s policies with respect to capital adequacy), then, upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer from time to time such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such cost of maintaining such increased capital or such reduction in the rate of return on such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s capital; provided , however , that notwithstanding anything to the contrary in this Section 2.10(b), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(b) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(c) All amounts payable under this Section 2.10 shall bear interest from the date that is ten (10) days after the date of demand by any Agent, any Lender or the L/C Issuer until Payment in Full to such Agent, such Lender or the L/C Issuer at the Reference Rate. A certificate of such Agent, such Lender or the L/C Issuer claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Agent, such Lender or the L/C Issuer to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Agent’s, such Lender’s or the L/C Issuer’s reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided , that the Borrowers shall not be required to compensate such Agent, such Lender or the L/C Issuer pursuant to this Section 2.10 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Agent, Lender or L/C Issuer, as the case may be, notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Agent’s, Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 days period referred to above shall be extended to include the period of retroactive effect thereof).

(e) The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Section 2.11 Extended Term Loans and Extended Revolving Credit Commitments .

(a) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Term Loan be amended to extend the scheduled maturity date (a “ Term Loan Extension ”) with respect to all or a portion of any principal amount of the applicable Term Loan (any such Term Loan or portion thereof that has been so converted,

 

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Extended Term Loans ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Term Loan, the Administrative Borrower shall provide a notice to the Collateral Agent (who shall provide a copy of such notice to each Term Loan Lender and the Administrative Agent) (a “ Term Loan Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii) certifying that both before and after giving effect to such Term Loan Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Term Loan Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition, (iii) the Administrative Borrower shall have offered to all Term Loan Lenders the opportunity to participate in such Term Loan Extension on a pro rata basis with respect to the corresponding Term Loan and on the same terms and conditions to each such Term Loan Lender, and any applicable Lender may elect to agree or to decline, in its sole discretion, and (iv) setting forth the proposed terms of the Extended Term Loans to be established, which (x) shall be identical as offered to each Term Loan Lender, (including as to the proposed interest rates and fees payable) and offered pro rata to each Term Loan Lender, and (y) shall specify the date on which the Administrative Borrower proposes that the Term Loan Extension shall be effective and the proposed final maturity date of the Extended Term Loan, except that :

(A) all or any of the scheduled amortization payments of principal of the Extended Term Loan may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans, to the extent provided in the applicable Extension Amendment;

(B) repayments of principal of the Extended Term Loan may be delayed to dates occurring after the Final Maturity Date;

(C) the effective yield with respect to the Extended Term Loan (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for the Term Loan, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Term Loan shall at any time (over the life of such Extended Term Loan) exceed by more than 0.50% the effective yield on the then outstanding Term Loan, the margin applicable to all existing Term Loans shall be increased to the extent necessary so that at all times thereafter the holders of the Term Loan do not receive less than the effective yield with respect to such Extended Term Loan less 0.50%;

(D) the Extension Amendment may provide for other covenants and terms that apply only after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Term Loan);

 

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(E) Extended Term Loans may have mandatory prepayment terms that provide for the application of proceeds from mandatory prepayment events to be made first to prepay the applicable Term Loans before applying any such proceeds to prepay such Extended Term Loans; and

(F) Extended Term Loans may have optional prepayment terms (including call protection and terms which allow the applicable Term Loan to be optionally prepaid prior to the prepayment of such Extended Term Loan) as may be agreed by the applicable Administrative Borrower and the Lenders; provided that no Extended Term Loans may be optionally prepaid prior to the date on which the corresponding Term Loan is Paid in Full, unless such optional prepayment is accompanied by a pro rata optional prepayment of the corresponding Term Loan.

(b) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Term Loan at the time of establishment thereof be earlier than the Final Maturity Date, (ii) the weighted average life to maturity of any Extended Term Loan at the time of establishment thereof shall be no shorter than the remaining weighted average life to maturity of the corresponding Term Loan, and (iii) any Extended Term Loan may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Term Loan Extension Request.

(c) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Revolving Credit Commitments be amended to extend the scheduled maturity date (a “ Revolving Credit Extension ”) with respect to all or a portion of any principal amount of such Revolving Credit Commitments (any such Revolving Credit Commitments which have been so amended, “ Extended Revolving Credit Commitments ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Revolving Credit Commitments, the Administrative Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each Revolving Loan Lender and the Collateral Agent) (each, a “ Revolver Extension Request ”; together with a Term Loan Extension Request, each an “ Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii) certifying that both before and after giving effect to such Revolving Credit Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Revolving Credit Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition and in no event shall such materiality qualifier be applicable with respect to the representations set forth in the final sentence of Section 6.01(g)(i), (iii) the Administrative Borrower shall have offered to all Revolving Loan Lenders the opportunity to participate in such Revolving Credit Extension on a pro rata basis with respect to the Revolving Credit Commitments and on the same terms and conditions to each such Revolving Loan Lender, and any Revolving Loan Lender may elect to agree or to decline,

 

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in its sole discretion, and (iv) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which (x) shall be identical as offered to each Revolving Loan Lender (including as to the proposed interest rates and fees payable) and offered pro rata to each Revolving Loan Lender and (y) shall specify the date on which the Administrative Borrower proposes that the Revolving Credit Extension shall be effective and the proposed final maturity date of the Extended Revolving Credit Commitment, except that:

(A) the maturity date of the Extended Revolving Credit Commitments may be delayed to a later date than the Final Maturity Date, to the extent provided in the applicable Extension Amendment;

(B) the effective yield with respect to extensions of credit under the Extended Revolving Credit Commitments (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for extensions of credit under the Revolving Credit Commitments, in each case, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Revolving Credit Commitments shall at any time (over the life of such Extended Revolving Credit Commitments) exceed by more than 0.50% the effective yield on the then outstanding Revolving Credit Commitments, the margin applicable thereto shall be increased to the extent necessary so that at all times thereafter the Revolving Loan Lenders do not receive less than the effective yield with respect to such Extended Revolving Credit Commitments less 0.50%;

(C) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Revolving Credit Commitments); and

(D) all borrowings under the Revolving Credit Commitments and the Extended Revolving Credit Commitments and repayments thereunder shall be made on a pro rata basis (except for (x) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings) and (y) repayments required upon the maturity date of the non-extending Revolving Credit Commitments).

(d) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Revolving Credit Commitment at the time of establishment thereof be earlier than the Final Maturity Date, (ii) the amount of the Extended Revolving Credit Commitments shall not include any scheduled decrease prior to the Final Maturity Date, and (iii) any Extended Revolving Credit Commitment may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Revolver Extension Request.

(e) The Administrative Borrower shall provide the applicable Extension Request at least ten Business Days prior to the date on which the Term Loan Lenders or Revolving Loan Lenders, as applicable, are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each

 

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case acting reasonably to accomplish the purposes of this Section 2.11. No Lender shall have any obligation whatsoever to agree to have any of its Term Loans amended into Extended Term Loans or any of its Revolving Credit Commitments amended into Extended Revolving Credit Commitments, as applicable, pursuant to any Extension Request, and no Lender shall have any obligation whatsoever to respond to any such Extension Request. Any Lender that does not respond to the Extension Request on or prior to the date specified therein shall be deemed to have rejected such Extension Request. Any existing Term Loan Lender wishing to have all or a portion of its Term Loan subject to such Extension Request amended into Extended Term Loans and any Revolving Loan Lender wishing to have all or a portion of its Revolving Credit Commitment subject to such Extension Request amended into Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (each, an “ Extension Election ”) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Credit Commitments, as applicable, which it has elected to be amended into Extended Term Loans or Extended Revolving Credit Commitments, as applicable (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, in respect of which applicable Term Loan Lenders or Revolving Loan Lenders, as the case may be, shall have accepted the relevant Extension Request exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested to be extended pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, as applicable, subject to Extension Elections shall be amended to Extended Term Loans or Revolving Credit Commitments, as applicable, on a pro rata basis (subject to rounding by the Administrative Agent, which shall be conclusive) based on the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, included in each such Extension Election.

(f) Extended Term Loans and Extended Revolving Credit Commitments shall be established pursuant to an Extension Amendment to this Agreement among the Loan Parties, the Administrative Agent, the Collateral Agent and each Lender providing Extended Term Loans or Lender providing an Extended Revolving Credit Commitment, which shall be consistent with the provisions set forth above (but which shall not require the consent of any other Lender other than those consents provided pursuant to this Agreement). Each Extension Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto. In connection with any Extension Amendment, the Loan Parties, the Administrative Agent, the Collateral Agent shall enter into such amendments to the other Loan Documents as may be reasonably requested by the Agents (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement) in order to ensure that the Extended Term Loans or Extended Revolving Credit Commitments are provided with the benefit of the Collateral provided in the other Loan Documents and shall deliver such other agreements, documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Agents.

(g) The provisions of this Section 2.11 shall override any provision of Section 12.02(a) (other than provisions therein that require certain unanimous votes) to the contrary. No conversion of Loans pursuant to any Extension Request in accordance with this Section 2.11 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. For the avoidance of doubt, and notwithstanding anything to the contrary contained in the foregoing, no provision of any Extension Amendment may amend, modify or waive any provision of Sections 2.05(c)(i), 2.05(c)(iii), 2.05(d) or 4.03 without the consent of all Lenders.

 

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Section 2.12 Mitigation Obligations; Replacement of Lenders .

(a) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section 2.10, then such Lender shall (at the request of the Administrative Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to such Section in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.

(b) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section 2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above in a manner that eliminates the accrual of such additional amounts, or if any Lender is a Defaulting Lender, then the Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) the Borrowers shall have paid to the Agents any assignment fees specified in Section 12.07;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.07) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from payments required to be made pursuant to Section 2.07 or a claim for compensation under Section 2.10, such assignment will result in a reduction in such compensation or payments thereafter; and

(iv) such assignment does not conflict with applicable law.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply.

 

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ARTICLE III.

LETTERS OF CREDIT

Section 3.01 Letters of Credit . Subject to the terms and conditions hereof (including Section 2.01(b) hereof), the L/C Issuer shall issue or cause the issuance of standby and/or trade letters of credit (collectively, “ Letters of Credit ”) for the account of the Borrowers or any of their Subsidiaries upon the request of Administrative Borrower (each such Letter of Credit, a “ Letter of Credit ”), which such Letters of Credit shall be denominated in Dollars. The Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed in the aggregate at any time the lower of (i) (A) the Borrowing Base minus (B) the aggregate principal amount of all Revolving Loans then outstanding, or (ii) the Letter of Credit Sublimit; provided that, notwithstanding anything to the contrary contained in the foregoing or in any other provision hereof, no Letter of Credit shall be issued if after giving effect thereto, any of the credit limits set forth in Section 2.01(b) would be violated. All disbursements or payments related to Letters of Credit shall be deemed to be Revolving Loans and shall bear interest at the rate applicable to Revolving Loans that are Reference Rate Loans in accordance with Section 2.04 . Letters of Credit that have not been drawn upon shall not bear interest.

Section 3.02 Issuance of Letters of Credit .

(a) Subject to the terms hereof, the Administrative Borrower may request the L/C Issuer to issue or cause the issuance of a Letter of Credit by delivering to the Administrative Agent, at the Payment Office, prior to 10:00 a.m. (New York time), at least five (5) Business Days’ prior to the proposed date of issuance, the L/C Issuer’s form of letter of credit application (the “ Letter of Credit Application ”) completed to the reasonable satisfaction of the L/C Issuer, and such other certificates, documents and other papers and information as the L/C Issuer may reasonably request. The Administrative Borrower, also has the right to give instructions and make agreements with the L/C Issuer with respect to any application, any applicable letter of credit and related security agreement, any applicable letter of credit reimbursement agreement and/or any other applicable agreement, and the disposition of applicable documents, and to agree with the L/C Issuer upon any amendment, extension or renewal of any Letter of Credit.

(b) Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts, other written demands for payment, or acceptances of drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) except as provided in Section 3.02(d) below, have an expiry date not later than twelve (12) months after such Letter of Credit’s date of issuance (subject to automatic renewals) and in no event later than the date that is 15 days prior to the Final Maturity Date. Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 600, and any amendments or revision thereof adhered to by the Issuer (“ UCP 600 ”) or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590) (“ ISP98 Rules ”), as determined by the L/C Issuer, and each trade Letter of Credit shall be subject to UCP 600.

 

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(c) The Administrative Agent shall use its reasonable efforts to notify the Lenders of the request by the Administrative Borrower for a Letter of Credit hereunder.

(d) Notwithstanding anything to the contrary set forth in Section 3.02(b) or any other provision of this Agreement, Administrative Borrower may request and L/C Issuer may issue Letters of Credit (and/or renewals or extensions of existing Letters of Credit) under this Agreement with an expiry date that extends months beyond) the Final Maturity Date then in effect when such Letter of Credit (or the extension or renewal thereof) is requested (any such Letter of Credit so issued, renewed or extended, a “ Post-Term Letter of Credit ”), subject to all other existing terms and conditions of and provisions in this Agreement regarding Letters of Credit, including any terms, conditions and provisions regarding the requesting and issuance thereof, but provided that, under no circumstances may any such Post-Term Letter of Credit as so issued, renewed or extended have an expiry date later than the twelve-month anniversary of the Final Maturity Date as in effect when such Post-Term Letter of Credit is so issued, renewed or extended. Nothing contained in this Section 3.02(d) shall be construed under any circumstances as an agreement by Lenders to extend the Final Maturity Date or require or obligate in any way Agent, Lenders and/or Issuer to make any Loans or to issue any new Letters of Credit (or extend or renew any existing Letters of Credit) on or after the Final Maturity Date.

(e) All of the obligations, liabilities and indebtedness of any kind or nature of Borrowers with respect to any and all such Post-Term Letters of Credit (including all Reimbursement Obligations and obligations to pay Letter of Credit Fees and obligations to pay interest in respect of any disbursement made by L/C Issuer in connection with a drawing under a Post-Term Letter of Credit that is not immediately reimbursed by Borrowers (including any such interest accruing thereon after the Final Maturity Date, or after the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest and/or Letter of Credit Fees is allowed in such proceeding)) (any such obligations, liabilities and indebtedness, the “ Post-Term Letter of Credit Obligations ”) shall remain Obligations secured by the Collateral pursuant to the Liens created under the Loan Documents both prior to and after the Final Maturity Date, and Agents and Lenders shall have no obligations to release any Liens on the Collateral notwithstanding the overall termination of this Agreement and of the commitments of the Lenders hereunder, until such time as the last such Post-Term Letter of Credit shall have expired or terminated or shall been fully drawn and all Post-Term Letter of Credit Obligations (other than contingent indemnities and expense reimbursement obligations to the extent no claim therefore has been made, or is reasonably expected to be made) have been paid in full in cash, provided that , notwithstanding the foregoing, on the Final Maturity Date, Borrowers may Cash Collateralize each such Post-Term Letter of Credit, and in such event, if all other Obligations have been Paid in Full, Collateral Agent may release the Liens and security interests on all other Collateral in accordance with the Loan Documents. Administrative Agent will deposit such Cash Collateral in a non-interest bearing deposit account maintained at Administrative Agent. Borrowers agree that upon the coming due of any such Post-Term Letter of Credit Obligations, Agent may use such Post-Term Cash Collateral to pay and satisfy such Post-Term Letter of Credit Obligations.

 

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(f) Notwithstanding anything to the contrary contained in this Agreement and/or the overall termination of this Agreement on the Final Maturity Date (subject to the survival of the provisions thereof that survive the termination of this Agreement by the terms thereof), all of the applicable provisions of Article III and Section 2.06(c) of this Agreement, any Letter of Credit application for any Post-Term Letter of Credit and any other documents executed by and/or between Borrowers and/or L/C Issuer with respect to any Post-Term Letter of Credit (other than any provisions providing for any obligations of any Lenders or any provisions giving Borrowers the right or ability to request that additional Letters of Credit be issued or that existing Letters of Credit be renewed or extended) shall survive the termination of this Agreement on the last day of the Term for the benefit of Agent and Lenders (but not for the benefit of Borrowers), and Borrowers shall remain bound thereby, including without limitation (i) the obligations under Section 2.6(c) of this Agreement for Borrowers to pay Letter of Credit Fees to L/C Issuer with respect to any Post-Term Letter of Credit for so long as each Post-Term Letter of Credit shall remain outstanding and (ii) the obligations under this Article III for Borrowers to pay interest on any disbursements or payments made by L/C Issuer relating to any Post-Term Letter of Credit until reimbursed.

Section 3.03 Requirements For Issuance of Letters of Credit . The Administrative Borrower shall authorize and direct the L/C Issuer to name one or more Borrowers as the “Applicant” or “Account Party” of each Letter of Credit. If the Administrative Agent is not the L/C Issuer of any Letter of Credit, the Administrative Borrower shall authorize and direct the L/C Issuer to deliver to the Administrative Agent all instruments, documents, and other writings and property received by the L/C Issuer pursuant to the Letter of Credit and to accept and rely upon the Administrative Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the application therefor.

Section 3.04 Disbursements, Reimbursement .

(a) Immediately upon the issuance of each Letter of Credit, each Revolving Loan Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s applicable Pro Rata Share (determined in accordance with paragraph (a) of the definition of “Pro Rata Share”) of the Maximum Face Amount of such Letter of Credit and the amount of such drawing, respectively.

(b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the L/C Issuer will promptly notify the Administrative Borrower. Provided that it shall have received such notice by 12:00 noon (New York City time) with respect to any Letter of Credit, the Borrowers shall reimburse (such obligation to reimburse the L/C Issuer together with any interest thereon pursuant to Section 2.04 shall be referred to as a “ Reimbursement Obligation ”) the L/C Issuer prior to 1:00 p.m. (New York City time) on such date that an amount is paid by the L/C Issuer under any Letter of Credit (each such date, a “ Drawing Date ”) in an amount and in the currency equal to the amount and currency so paid by the L/C Issuer. In the event the Borrowers fail to reimburse the L/C Issuer for the full amount of any drawing under any Letter of Credit by 1:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, the Administrative Agent will promptly notify each Revolving Loan Lender thereof, and the Borrowers shall be deemed to have requested that a Revolving Loan that is a Reference Rate Loan be made by the Revolving Loan Lenders pursuant to Section 2.01(a)(i)(B) to be disbursed on the Drawing Date under such Letter of Credit. Any notice given by the Administrative Agent pursuant to this Section 3.04(b) may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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(c) Each Revolving Loan Lender shall upon any notice pursuant to Section 3.04(b) make available to the L/C Issuer an amount in immediately available funds equal to its applicable Pro Rata Share (determined in accordance with paragraph (a) of the definition of “Pro Rata Share”) of the amount of the drawing, whereupon the participating Lenders shall (subject to Section 3.04(d)) each be deemed to have made a Revolving Loan that is a Reference Rate Loan to the Borrowers in that amount. If any Revolving Loan Lender so notified fails to make available to the L/C Issuer the amount of such Lender’s applicable Pro Rata Share of such amount by no later than 2:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, then (unless L/C Issuer and such Lender shall agree otherwise, each in their sole and absolute discretion) interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three days following the Drawing Date and (ii) at a rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans on and after the fourth day following the Drawing Date. The Administrative Agent will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent to give any such notice on the Drawing Date or in sufficient time to enable any Revolving Loan Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 3.04(c), provided that such Lender shall not be obligated to pay interest as provided in Section 3.04(c) (i) and (ii) until and commencing from the date of receipt of notice from the Administrative Agent of a drawing. Each Revolving Loan Lender’s payment to the L/C Issuer pursuant to this Section 3.04(c) shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “ Participation Revolving Loan ” from such Lender in satisfaction of its Participation Commitment under this Section 3.04.

(d) With respect to any unreimbursed drawing that is not converted into a Revolving Loan to the Borrowers in whole or in part as contemplated by Section 3.04(b), because of the failure of Borrowers to satisfy the conditions set forth in Section 5.02 (other than any notice requirements) or for any other reason, the Borrowers shall be deemed to have incurred from the L/C Issuer a borrowing (each a “ Letter of Credit Borrowing ”) in the currency in which such Letter of Credit is denominated in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans.

(e) Each Lender’s Participation Commitment shall continue until the last to occur of any of the following events: (x) the L/C Issuer ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter of Credit issued or created hereunder remains outstanding and uncanceled and (z) all Persons (other than the Borrowers) have been fully reimbursed for all payments made under or relating to Letters of Credit.

 

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Section 3.05 Repayment of Participation Revolving Loans .

(a) Upon (and only upon) receipt by the L/C Issuer for its account of immediately available funds from the Borrowers (i) in reimbursement of any payment made by the L/C Issuer under any Letter of Credit with respect to which any Lender has made a Participation Revolving Loan to the L/C Issuer or (ii) in payment of interest on such a payment made by the L/C Issuer under such a Letter of Credit, the L/C Issuer will pay to each Revolving Loan Lender in the same funds and currencies as those received by the L/C Issuer, the amount of such Lender’s applicable Pro Rata Share of such funds, except the L/C Issuer shall retain the amount of the applicable Pro Rata Share of such funds of any Revolving Loan Lender that did not make a Participation Revolving Loan in respect of such payment by the L/C Issuer.

(b) If the L/C Issuer is required at any time to return to the Borrowers or to a trustee, receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion of the payments made by the Borrowers to the L/C Issuer pursuant to Section 3.05(a) in reimbursement of a payment made under any Letter of Credit or interest or fee thereon, each Revolving Loan Lender shall, on demand of the L/C Issuer, forthwith return to the L/C Issuer the amount of its applicable Pro Rata Share of any amounts so returned by the L/C Issuer plus interest at the Federal Funds Effective Rate.

Section 3.06 Documentation . Each Borrower agrees to be bound by the terms of the Letter of Credit Application and by the L/C Issuer’s interpretations of any Letter of Credit issued for the Loan Account of Borrowers and by the L/C Issuer’s written regulations and customary practices relating to letters of credit, though the L/C Issuer’s interpretations may be different from the interpretations of Borrowers. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment), neither the L/C Issuer nor the Administrative Agent shall be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any instructions of any Borrower or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.

Section 3.07 Determination to Honor Drawing Request . In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the L/C Issuer shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

Section 3.08 Nature of Participation and Reimbursement Obligations . Each applicable Revolving Loan Lender’s obligation in accordance with this Agreement to make the Revolving Loans or Participation Revolving Loans as a result of a drawing under a Letter of Credit, and the obligations of the Borrowers to reimburse the L/C Issuer upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article III under all circumstances, including the following circumstances:

(a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Administrative Agent, the Borrowers or any other Person for any reason whatsoever;

 

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(b) the failure of the Borrowers or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in this Agreement for the making of a Revolving Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Revolving Loans under Section 3.04 ;

(c) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Documents;

(d) any claim of breach of warranty that might be made by any Borrower or any Lender against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Borrower or any Lender may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the L/C Issuer, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement, such Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrowers or any of their Subsidiaries and the beneficiary for which any Letter of Credit was procured);

(e) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provisions of services relating to a Letter of Credit;

(f) except as provided in Section 3.07 , any payment by the L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

(g) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

(h) any failure by the Administrative Agent or the L/C Issuer to issue any Letter of Credit in the form requested by the applicable Borrowers, unless the Administrative Agent has received written notice from the Administrative Borrower of such failure within three (3) Business Days after the Administrative Agent shall have furnished the Administrative Borrower a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

(i) any Material Adverse Effect on any Borrower or any Guarantor;

(j) any breach of this Agreement or any Loan Document by any party thereto;

 

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(k) the occurrence or continuance of an insolvency proceeding with respect to any Borrower or any Guarantor;

(l) the fact that a Default or Event of Default shall have occurred and be continuing;

(m) the fact that the Final Maturity Date shall have occurred or this Agreement or the Obligations hereunder shall have been terminated; and

(n) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

Nothing contained in this Section 3.08 shall be deemed to relieve the Administrative Agent or the L/C Issuer from any claim by any of the Borrowers for the gross negligence or willful misconduct of the Administrative Agent or the L/C Issuer, respectively, in respect of honoring or failing to honor any drawing under any Letter of Credit or otherwise in respect of any Letter of Credit, but any such claim may not be used as a defense to the reimbursement obligation for any such drawing.

Section 3.09 Indemnity . In addition to amounts payable as provided in Section 12.15 , the Borrowers, jointly and severally, hereby agree to protect, indemnify, pay and save harmless the Administrative Agent and the L/C Issuer from and against any and all claims, demands, liabilities, damages, taxes, (except for the imposition of, or any change in the rate of, any taxes imposed on the net income of any Agent, any Lender or the L/C Issuer by the jurisdiction in which such Person is organized or has its principal lending office), penalties, interest, judgments, losses, costs, charges and expenses (including reasonable and documented out-of-pocket fees, expenses and disbursements of outside counsel and allocated costs of internal counsel) which the Administrative Agent or any of the Administrative Agent’s Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence, bad faith or willful misconduct of the Administrative Agent or the L/C Issuer or any of their respective Affiliates (as determined by a court of competent jurisdiction in a final nonappealable judgment), or (B) the wrongful dishonor by the Administrative Agent, the L/C Issuer, or any of their respective Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “ Governmental Acts ”).

Section 3.10 Liability for Acts and Omissions . As between the Borrowers, the L/C Issuer and the Revolving Loan Lenders, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the validity or sufficiency of any instrument transferring or

 

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assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among Borrowers and any beneficiary of any Letter of Credit or any such transferee; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (h) any consequences arising from causes beyond the control of the L/C Issuer, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the L/C Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the L/C Issuer from liability for the L/C Issuer’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment) in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the L/C Issuer or the L/C Issuer’s Affiliates be liable to the Borrowers for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, the L/C Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the L/C Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the L/C Issuer or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “ Order ”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the L/C Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment), shall not put the L/C Issuer under any resulting liability to the Borrowers or any Revolving Loan Lender.

 

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ARTICLE IV.

APPLICATION OF PAYMENTS; DEFAULTING LENDERS;

JOINT AND SEVERAL LIABILITY OF BORROWERS

Section 4.01 Payments; Computations and Statements . (a) The Borrowers will make each payment under this Agreement not later than 2:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America and in immediately available funds, to the applicable Administrative Agent’s Account. All payments received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day will be credited to the Loan Account on the next succeeding Business Day, provided that for the purpose of computing interest charges for the Obligations during any time when springing cash dominion is in effect pursuant to Section 8.01(d), all items of payment (including customer remittances received into any Cash Management Accounts and applied to the Obligations under any cash dominion arrangements described in Section 8.01) shall be deemed applied by the Administrative Agent one (1) Business Day after (A) the Business Day following the Administrative Agent’s receipt of such payments via wire transfer or electronic depository check or (B) in the case of payments received by the Administrative Agent in any other form, the Business Day such payment constitutes good funds. This approach is acknowledged by the parties to be an integral aspect of the price of the Lenders’ financing of the Borrowers and shall apply irrespective of the characterization of whether receipts are owned by the Borrowers or the Lenders. All payments shall be made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. Except as provided in Section 2.02, after receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the applicable Lenders in accordance with their applicable Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement, provided that the Administrative Agent will cause to be distributed all interest and fees received from or for the account of the Borrowers not less than once each month and in any event promptly after receipt thereof. The Lenders and the Borrowers hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account of the Borrowers with any amount due and payable by the Borrowers under any Loan Document, provided that, in the absence of a continuing Event of Default, any such charge in respect of out-of-pocket fees, costs and expenses of the Agents and Lenders payable by the Borrowers shall occur no sooner than 15 days after the Administrative Borrower’s receipt of a reasonably detailed invoice therefor. Each of the Lenders and the Borrowers agrees that the Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing or whether any of the conditions precedent in Section 5.02 have been satisfied. Any amount charged to the Loan Account of the Borrowers shall be deemed a Revolving Loan hereunder made by the Revolving Loan Lenders to the Borrowers, funded by the Administrative Agent on behalf of the Revolving Loan Lenders and subject to Section 2.02 of this Agreement. The Lenders and the Borrowers confirm that any charges which the Administrative Agent may so

 

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make to the Loan Account of the Borrowers as herein provided will be made as an accommodation to the Borrowers and solely at the Administrative Agent’s discretion, provided that the Administrative Agent shall from time to time upon the request of the Collateral Agent, charge the Loan Account of the Borrowers with any amount not paid when due and payable under any Loan Document. Whenever any payment to be made or any report required to be delivered under any such Loan Document shall become due on a day other than a Business Day, such payment shall be made, or such report shall be delivered on the next succeeding Business Day and if applicable, such extension of time shall in such case be included in the computation of interest or fees, as the case may be. Except as otherwise expressly provided for herein, all computations of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such fees are payable. Each determination by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

(b) The Administrative Agent shall provide each of the Administrative Borrowers, promptly after the end of each calendar month, a summary statement (in the form from time to time used by the Administrative Agent) of the opening and closing daily balances in the Loan Account of the Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied, the amount of interest accrued on the Loans to the Borrowers during such month, any Letters of Credit issued by the L/C Issuer for the account of the Borrowers during such month, specifying the face amount thereof, the amount of charges to the Loan Account and/or Loans made to the Borrowers during such month to reimburse the Revolving Loan Lenders for drawings made under Letters of Credit, and the amount and nature of any charges to the Loan Account made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement shall be presumed to be correct and, thirty (30) days after the same is sent, shall be final and conclusive absent manifest error.

Section 4.02 Sharing of Payments . Except as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall forthwith (a) turn the same over to the Administrative Agent, in kind, and with such endorsements as may be required to negotiate the same to the Administrative Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (b) purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them in accordance with the applicable provisions of this Agreement; provided , however , that (i) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (A) the amount of such Lender’s required repayment to (B) the total amount so recovered from the purchasing Lender of any interest or other amount paid by the purchasing Lender in respect of the total amount so

 

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recovered) and (ii) the provisions of this Section shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or participant, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 4.02 may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.

Section 4.03 Apportionment of Payments . Subject to Section 2.02 hereof and to any written agreement among the Agents and/or the Lenders (including the Agreement Among Lenders):

(a) All payments of principal and interest in respect of outstanding Loans, all payments in respect of the Letter of Credit Obligations, all payments of fees (other than the fees set forth in Section 2.06 hereof to the extent set forth in a written agreement among the Agents and the Lenders, fees with respect to Letters of Credit provided for in Sections 2.06(c)(i)(B) and 2.06(c)(ii)) and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans or Letter of Credit Obligations, as designated by the Person making payment when the payment is made.

(b) After the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Collateral Agent or the Required Lenders shall, apply all proceeds of the Collateral as follows: (i)  first , ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents or the L/C Issuer until paid in full; (ii)  second , ratably to pay the Revolving Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Revolving Loan Lenders until paid in full; (iii)  third , ratably to pay interest then due and payable in respect of the Revolving Loans, Agent Advances and Reimbursement Obligations until paid in full; (iv)  fourth , ratably to pay principal of the Revolving Loans, Agent Advances and Letter of Credit Obligations (or, to the extent such Obligations are contingent, to provide Cash Collateral in respect of such Obligations) until paid in full; (v)  fifth , ratably to pay Bank Product Obligations in an amount not to exceed the amount of the Bank Product Reserve; (vi)  sixth , ratably to pay the Term Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Term Loan Lenders until paid in full; (vii)  seventh , ratably to pay interest then due and payable in respect of the Term Loan until paid in full; (viii)  eighth , ratably to pay principal of the Term Loan A until paid in full; (ix)  ninth , ratably to pay principal of the Term Loan B until paid in full; (x) tenth, ratably to pay the Obligations in respect of any Applicable Prepayment Premium then due and payable to the Lenders until paid in full; ( x xi tenth, eleventh , ratably to Bank Product Obligations to the extent not paid under clause (v) above; and ( xi xii eleventh t welfth , to the ratable payment of all other Obligations then due and payable.

 

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(c) In each instance, so long as no Event of Default has occurred and is continuing and the Administrative Agent has not elected to or has not been directed by the Collateral Agent to apply payments and other Proceeds of Collateral in accordance with Section 4.03(b), Section 4.03(b) shall not be deemed to apply to any payment by the Borrowers specified by the Administrative Borrower to the Administrative Agent to be for the payment of the principal of or interest on the Term Loans or other related Obligations then due and payable under any provision of this Agreement or the prepayment of all or part of the principal of the Term Loans in accordance with the terms and conditions of Section 2.05.

(d) For purposes of Section 4.03(b), “paid in full” means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees and interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest calculated at default rates, interest on interest and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding.

(e) In the event of a direct conflict between the priority provisions of this Section 4.03 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 4.03 shall control and govern.

Section 4.04 Defaulting Lenders . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(a) The Administrative Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the Administrative Agent for such Defaulting Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender, the Administrative Agent shall transfer any such payments to each other non-Defaulting Lender ratably in accordance with their Pro Rata Shares (without giving effect to the Pro Rata Shares of such Defaulting Lender) (but only to the extent that such Defaulting Lender’s Loans were funded by the other Lenders) or, if so directed by the Administrative Borrower and if no Default or Event of Default has occurred and is continuing (and to the extent such Defaulting Lender’s Loans were not funded by the other Lenders), retain the same to be re-advanced to the Borrowers as if such Defaulting Lender had made such Loans to the Borrowers. Subject to the foregoing, the Administrative Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by the Administrative Agent for the account of such Defaulting Lender. No Defaulting Lender shall be entitled to receive any Unused Line Fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fees that otherwise would have been required to have been paid to that Defaulting Lender).

 

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(b) Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 12.07.

(c) The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Administrative Agent or to the Lenders other than such Defaulting Lender.

(d) This Section shall remain effective with respect to such Lender until either (i) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the L/C Issuer, the Agents, and the Borrowers shall have waived such Defaulting Lender’s default in writing, and the Defaulting Lender makes its Pro Rata Share of the applicable defaulted Loans and pays to the Agents all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

Section 4.05 Joint and Several Liability of the Borrowers .

(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations, in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05) it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the

 

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Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the Borrowers under the provisions of this Section 4.05 constitute the absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.

(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation.

(c) The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have been Paid in Full.

(d) Each of the Borrowers hereby agrees that it will not enforce any rights that it may now or hereafter acquire against any other entity constituting a Borrower or a Guarantor that arise from the existence, payment, performance or enforcement of such entity’s obligations under this Agreement and the other Loan Documents, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent and the Lenders against any other entity constituting a Borrower or a Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any other entity constituting a Borrower or a Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the Payment in Full of the Obligations.

 

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ARTICLE V.

CONDITIONS TO LOANS

Section 5.01 Conditions Precedent to Effectiveness . This Agreement shall become effective as of the Business Day (the “ Effective Date ”) when each of the following conditions precedent shall have been satisfied in a manner reasonably satisfactory to the Agents:

(a) Payment of Fees, Etc. The Borrowers shall have paid on or before the date of this Agreement all fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04.

(b) Representations and Warranties; No Event of Default . The following statements shall be true and correct: (i) notwithstanding the provisions of Section 5.02(a)(i) and (ii) below to the contrary, the only representations and warranties relating to the Borrowers and their Subsidiaries the accuracy of which shall be a condition to the availability of the Loans and the Letters of Credit on the Effective Date, shall be (A) the representations and warranties contained in Section 6.01(a), (b), (c), (d), (k), (t), (u) and (y), and (B) the representations and warranties made by Funko Holdings or with respect to the business of Parent in the Acquisition Agreement, but only to the extent that the Parent or any of its Affiliates have the right under the Acquisition Agreement to terminate their obligations under the Acquisition Agreement or not to consummate the transactions contemplated by the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement without regard to the Parent’s or the Buyer’s waiver of such breach; provided that the representations and warranties specified in clauses (A) and (B) above are true and correct on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct on and as of such earlier date), and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms.

(c) Legality . The making of the initial Loans or the issuance of any Letters of Credit shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C Issuer.

(d) Delivery of Documents . The Collateral Agent shall have received on or before the Effective Date the following, each in form and substance reasonably satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective Date:

(i) a Security Agreement, together with, to the extent applicable, the original stock certificates representing all of the Equity Interests, and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and other proper instruments of transfer;

 

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(ii) a UCC Filing Authorization Letter, together with (A) appropriate financing statements on Form UCC-1, duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Agreement and (B) evidence reasonably satisfactory to the Collateral Agent of the filing of such UCC-1 financing statements as reasonably requested by the Collateral Agent and each Mortgage;

(iii) certified copies of request for copies of information on Form UCC-11, listing all effective financing statements which name as debtor any Loan Party and which are filed in the offices referred to in paragraph (ii) above, together with copies of such financing statements, none of which, except as otherwise agreed by the Collateral Agent, shall cover any of the Collateral (other than Permitted Liens) and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such Liens;

(iv) the Collateral Assignment, duly executed by the Buyer;

(v) the Intercompany Subordination Agreement, duly executed by each Loan Party;

(vi) the Flow of Funds Agreement, duly executed by each party; thereto;

(vii) a copy of the resolutions of each Loan Party, certified as of the Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;

(viii) a Perfection Certificate, duly executed by the parties thereto;

(ix) a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives;

(x) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions;

 

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(xi) a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction;

(xii) a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Effective Date by an Authorized Officer of such Loan Party;

(xiii) an opinion of Hogan Lovells, counsel to the Loan Parties, as to such customary matters as the Agents may reasonably request;

(xiv) [Intentionally Omitted].

(xv) [Intentionally Omitted].;

(xvi) [Intentionally Omitted].

(xvii) a certificate of an Authorized Officer of each Loan Party, certifying as to the matters set forth in Section 5.01(b);

(xviii) a copy of (A) the Financial Statements and (B) the financial projections described in Section 6.01(g)(ii) hereof, certified as of the Effective Date as complying with the representations and warranties set forth in Section 6.01(g)(ii) by an Authorized Officer of the Ultimate Parent;

(xix) a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent;

(xx) evidence of the insurance coverage required by Section 7.01 and the terms of each Security Agreement and such other insurance coverage with respect to the business and operations of the Loan Parties as the Collateral Agent may reasonably request, in each case, where reasonably requested by the Collateral Agent, with such endorsements as to the named insureds or loss payees thereunder as the Collateral Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Collateral Agent may request;

(xxi) evidence of the payment in full of all Indebtedness under the Existing Credit Facilities, together with (A) a termination and release agreement or deed of release (as applicable) with respect to each of the Existing Credit Facilities and all related documents, duly executed by the applicable Loan Parties and the Existing Lenders, (B) a termination of security interest in intellectual property for each assignment for security recorded by the Existing Lenders at the United States Patent and Trademark Office or the United States Copyright Office and covering any intellectual property of the Loan Parties, and (C) UCC-3 termination statements for all UCC-1 financing statements filed by the Existing Lenders and covering any portion of the Collateral;

 

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(xxii) copies of the Acquisition Documents and, to the extent requested by the Collateral Agent, of the other Material Contracts as in effect on the Effective Date, certified as true and correct copies thereof by an Authorized Officer of the Administrative Borrower, together with a certificate of an Authorized Officer of the Administrative Borrower stating that such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;

(xxiii) such other customary agreements, instruments, opinions and other documents, each reasonably satisfactory to the Collateral Agent in form and substance, as the Collateral Agent may reasonably request.

(e) Material Adverse Effect . No event or development shall have occurred since December 31, 2014 which constitutes a “Company Material Adverse Effect” (as defined in the Acquisition Agreement).

(f) Consummation of Acquisition . Concurrently with the making of the initial Loans, (i) the Buyer shall have purchased pursuant to the Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived in a manner that is materially adverse to the Lenders’ interests) without the prior written consent of the Agents), and shall have become the owner, free and clear of all Liens, of all of the Acquisition Assets, (ii) the proceeds of the initial Loans shall have been applied in full to pay a portion of the Purchase Price payable pursuant to the Acquisition Documents for the Acquisition Assets and the closing and other costs relating thereto, and (iii) the Buyer shall have fully performed all of the obligations to be performed by it under the Acquisition Documents.

(g) Sponsor Investment . The Agents shall have received reasonably satisfactory evidence that the Permitted Holders made a cash equity contribution to Ultimate Parent of at least $118,000,000 plus fee and expenses related thereto (plus $26,900,000 of roll-over equity from existing management and $37,400,000 of roll-over equity from the Funko Sellers under the Acquisition Agreement) to effect the consummation of the Funko Acquisition.

(h) Availability . After giving effect to all Loans to be made on the Effective Date, the Letters of Credit to be issued on the Effective Date and the consummation of the Funko Acquisition (including the repayment of the Existing Credit Facilities), the Availability shall not be less than $20,000,000. The Administrative Borrower shall deliver to the Collateral Agent a certificate of the chief financial officer of the Administrative Borrower certifying as to the matters set forth above and containing the calculation of Availability.

 

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Section 5.02 Conditions Precedent to All Loans and Letters of Credit . The obligation of any Agent or any Lender to make any Loan or of the L/C Issuer to issue any Letter of Credit after the Effective Date is subject to the fulfillment of each of the following conditions precedent:

(a) Representations and Warranties; No Event of Default . The following statements shall be true and correct, and the submission by the Administrative Borrower to the Administrative Agent of a Notice of Borrowing with respect to each such Loan, and the Borrowers’ acceptance of the proceeds of such Loan, or the submission by the Administrative Borrower of a Letter of Credit Application with respect to a Letter of Credit, and the issuance of such Letter of Credit, shall each be deemed to be a representation and warranty by each Borrower on the date of such Loan or the date of issuance of such Letter of Credit that: (i) the representations and warranties contained in ARTICLE VI and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the date of such Loan or such Letter of Credit are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof (including the representations and warranties set forth in the final sentence of Section 6.01(g)(i)), which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)), (ii) at the time of and after giving effect to the making of such Loan and the application of the proceeds thereof or at the time of issuance of such Letter of Credit, no Default or Event of Default has occurred and is continuing or would result from the making of the Loan to be made, or the issuance of such Letter of Credit to be issued, on such date and (iii) the conditions set forth in this Section 5.02 have been satisfied as of the date of such request.

(b) Notices . The Administrative Agent shall have received (i) a Notice of Borrowing pursuant to Section 2.02 hereof and (ii) a Letter of Credit Application pursuant to Section 3.02(a) hereof, if applicable.

Section 5.03 Conditions Subsequent to Effectiveness . As an accommodation to the Loan Parties, the Agent and the Lenders have agreed to execute this Agreement and to make the Loans on the Effective Date notwithstanding unsatisfied conditions set forth below on or before the Effective Date. In consideration of such accommodation, the Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Agreement and the other Loan Documents, including, without limitation, those conditions set forth in Section 5.01, the Loan Parties shall satisfy each of the conditions subsequent set forth below on or before the date applicable thereto (it being understood that (i) the failure by the Loan Parties to perform or cause to be performed any such condition subsequent on or before the date applicable thereto shall constitute an Event of Default and (ii) to the extent that the existence of any such condition subsequent would otherwise cause any representation, warranty or covenant in this Agreement or any other Loan Document to be breached, the Required Lenders hereby waive such breach for the period from the Effective Date until the date on which such condition subsequent is required to be fulfilled pursuant to this Section 5.03):

 

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(a) Within 45 days after the Effective Date (or such later date as may be permitted by the Agents in their sole discretion), the Agents shall have received Cash Management Agreements, each in form and substance reasonably satisfactory to the Agents, with respect to the Cash Management Accounts;

(b) Within 240 days of the Effective Date or such later date as may be agreed to by the Administrative Agent in its sole discretion, Parent shall have established master concentration account(s) with PNC for all of the Loan Parties’ Treasury Services. For purposes hereof, “Treasury Services” means demand deposit related services, investment services, deposits (on-site and remote), checking account services, lockbox services, controlled disbursement account services, manual payroll account services, account reconciliation services, foreign exchange services, debit card account services, ACH services, zero balance accounts, wire transfer services, and daily on-line reporting; and

(c) Within ten (10) Business Days following the Effective Date (or such later date as permitted by the Agents in their sole discretion), the Agents shall have received endorsements as to the named insureds, first mortgagees or loss payees under the insurance policies listed on Schedule 6.01(r) as required under Section 7.01(h) and providing that such policies may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent and each such named insured, first mortgagees or loss payee.

ARTICLE VI.

REPRESENTATIONS AND WARRANTIES

Section 6.01 Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents, the Lenders and the L/C Issuer as follows:

(a) Organization, Good Standing, Etc . Each Loan Party and each of its Subsidiaries (i) is a corporation, limited liability company or limited partnership or other foreign business entity duly organized, validly existing and, where applicable, in good standing under the laws of the state or jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and, where applicable, is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, other than a jurisdiction where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.

 

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(b) Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any applicable Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(c) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(d) Enforceability of Loan Documents . This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.

(e) Capitalization; Subsidiaries .

(i) On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and the issued and outstanding Equity Interests of the Parent are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent have been validly issued. Except as described on Schedule 6.01(e), as of the Effective Date, there are no outstanding debt or equity securities of the Parent and no outstanding obligations of the Parent convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent, or other obligations of the Parent to issue, directly or indirectly, any shares of Equity Interests of the Parent.

(ii) Schedule 6.01(e) is a complete and correct description of the name, jurisdiction of incorporation and ownership of the outstanding Equity Interests of such Subsidiaries of the Ultimate Parent in existence as of the Effective Date. All of the issued and outstanding shares of Equity Interests of such Subsidiaries have been validly issued and, in the case of any Subsidiary organized as a corporation under the laws of any jurisdiction of the United States, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as indicated on such Schedule, as of the Effective Date, all such Equity Interests is owned by the Ultimate Parent or one or more of its wholly-owned Subsidiaries, free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens that are consensual or contractual Liens). As of the Effective Date, there are no outstanding debt or equity securities of the Ultimate Parent or any of its Subsidiaries and no outstanding obligations of the Ultimate Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Ultimate Parent or any of its Subsidiaries, or other obligations of any Subsidiary to issue, directly or indirectly, any shares of Equity Interests of any Subsidiary of the Ultimate Parent.

 

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(f) Litigation; Commercial Tort Claims . Except as set forth in Schedule 6.01(f), (i) there is no pending or, to the best knowledge of any Loan Party, threatened action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (A) could reasonably be expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect or (B) relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby and (ii) as of the Effective Date, none of the Loan Parties holds any commercial tort claims in respect of which a claim has been filed in a court of law or a written notice by an attorney has been given to a potential defendant.

(g) Financial Condition .

(i) The Financial Statements, copies of which have been delivered to each Agent, fairly present the consolidated financial condition of Funko and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of Funko and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP (subject to the absence of footnotes and year-end adjustments in the case of the Financial Statements described in clause (b) of the definition of Financial Statements). Except as set forth on Schedule 6.01(g), all material indebtedness and other material liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long-term commitments), direct or contingent, of Funko and its Subsidiaries are set forth in the Financial Statements, but excluding any liabilities incurred in the ordinary course of business since the date of the last Financial Statements. Since December 31, 2014, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

(ii) Funko has heretofore furnished to each Agent and each Lender (A) (x) projected monthly income statements of Funko and its Subsidiaries for the period from January 1, 2015 through December 31, 2017 and (y) projected quarterly balance sheets, statements of operations and statements of cash flows of Funko and its Subsidiaries for the period from January 1, 2015 through December 31, 2017, (B) projected annual balance sheets, income statements and statements of cash flows of the Funko and its Subsidiaries for the Fiscal Years ending on January 1, 2015 through December 31, 2019, which projected financial statements shall be updated from time to time pursuant to Section 7.01(a)(vii) and (C) projected annual budget for Funko and its Subsidiaries, prepared on a monthly basis. Such budget, as updated from time to time pursuant to Section 7.01(a)(viii), has been prepared on a reasonable basis and in good faith by Funko, and is based on assumptions believed by Funko to be reasonable at the time made (it being understood that projections are uncertain by their nature and may not be realized).

(h) Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any domestic or foreign Requirement of Law, including, without limitation, any statute, legislation or treaty, any guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or

 

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decree of any Governmental Authority, in each case, applicable to it or any of its property or assets, or (iii) any material term of any Contractual Obligation (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties, except to the extent that any such violation described in subclause (i) (solely in the case of a Subsidiary that it not a Loan Party), (ii) or (iii) could not reasonably be expected to result in a Material Adverse Effect, and no Default or Event of Default has occurred and is continuing.

(i) ERISA . Except as set forth on Schedule 6.01(i), (i) each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred for which there remains any outstanding material liability nor is any such Termination Event reasonably expected to occur with respect to any Employee Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Agents, is complete and correct and fairly presents the funding status of such Employee Plan as of the date of such report, and since the date of such report there has been no material adverse change in such funding status (other than resulting from changes in market value of assets of such Plan), (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service in the last two years with respect to any Employee Plan have been delivered to the Agents, (v) no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal Revenue Code at any time during the previous 60 months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. No Loan Party has incurred any withdrawal liability under ERISA with respect to any Multiemployer Plan that remains unsatisfied, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the future incur any such withdrawal liability. No Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (ii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course or claims that could not reasonably be expected to result in material liability) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan. Except as set forth on Schedule 6.01(i) and except as required by Section 4980B of the Internal Revenue Code or pursuant to executive employment agreements, as of the date hereof, no Loan Party or any of its Subsidiaries maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) for employees in the US which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or coverage after a participant’s termination of employment.

 

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(j) Taxes, Etc. All national and Federal, and all material state, provincial and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party or any of its Subsidiaries have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries and which have become due and payable on or prior to the date hereof have been paid, except (i) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (ii) in the case of any Subsidiary that is not a Loan Party, relating to amounts that are not material. Each Loan Party is resident for Tax purposes only in the jurisdiction of its incorporation.

(k) Regulations T, U and X . No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.

(l) Nature of Business .

(i) No Loan Party is engaged in any business other than as described on Schedule 6.01(l) and other business reasonably related or ancillary thereto.

(ii) The Parent is a holding company and does not have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments) or engage in any operations or business (other than the ownership of its Subsidiaries).

(m) Adverse Agreements, Etc . No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which has, or in the future could reasonably be expected to have, a Material Adverse Effect.

(n) Permits, Etc . Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business currently owned, leased, managed or operated, or to be acquired, by such Person, except where the failure to have, or be in compliance with, all such permits, licenses, authorizations, approvals, entitlements and accreditations could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect, except where such suspension, revocation, impairment, forfeiture or non-renewal could not reasonably be expected to have a Material Adverse Effect.

 

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(o) Properties . (i) Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens. All such properties and assets are in good working order and condition for the purpose of the conduct of the business of the Loan Parties, ordinary wear and tear and casualty events excepted.

(ii) Schedule 6.01(o) sets forth a complete and accurate list, as of the Effective Date, of the location, by state and street address, of all real property owned or leased by each Loan Party and identifies the interest (fee or leasehold) of such Loan Party therein. As of the Effective Date, each Loan Party has valid leasehold interests in the Leases described on Schedule 6.01(o) to which it is a party. To the extent requested by the Administrative Agent, true, complete and correct copies of each such Lease have been delivered to the Agents prior to the Effective Date. Schedule 6.01(o) sets forth, as of the Effective Date, with respect to each such Lease, the commencement date, termination date, renewal options (if any) and annual base rents. As of the Effective Date, to the knowledge of the Loan Parties, each such Lease is valid and enforceable in accordance with its terms in all material respects and is in full force and effect. No consent or approval of any landlord or other third party in connection with any such Lease is necessary for any Loan Party to enter into and execute the Loan Documents to which it is a party, except as set forth on Schedule 6.01(o). To the best knowledge of any Loan Party, as of the Effective Date, no other party to any such Lease is in default of its material obligations thereunder, and no Loan Party (or any other party to any such Lease) has at any time delivered or received any notice of default which remains uncured under any such Lease and, as of the Effective Date, no event has occurred which, with the giving of notice or the passage of time or both, would constitute a default under any such Lease.

(p) Full Disclosure . None of the other reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading; provided that, with respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time prepared.

(q) [ Intentionally omitted ].

(r) Environmental Matters . Except as set forth on Schedule 6.01(r), (i) the operations of each Loan Party are in compliance with all Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect; (ii) there has been no Release at any of the properties owned or operated by any Loan Party or a predecessor in interest, or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iii) no Environmental Action has been asserted against any Loan Party

 

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or any predecessor in interest nor does any Loan Party have knowledge or notice of any threatened or pending Environmental Action against any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iv) no Environmental Actions have been asserted against any facilities that may have received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (v) no property now or, to the knowledge of the Loan Parties as of the Effective Date, formerly owned or operated by a Loan Party has been used as a treatment or disposal site for any Hazardous Material; (vi) no Loan Party has failed to report to the proper Governmental Authority any Release which is required to be so reported by any Environmental Laws which could reasonably be expected to have a Material Adverse Effect; (vii) each Loan Party holds and is in compliance with all licenses, permits and approvals required under any Environmental Laws in connection with the operation of the business carried on by it, except for such licenses, permits and approvals as to which a Loan Party’s failure to maintain or comply with could not reasonably be expected to have a Material Adverse Effect; and (viii) no Loan Party has received any written notification pursuant to any Environmental Laws that (A) any work, repairs, construction or Capital Expenditures are required to be made as a condition of continued compliance with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (B) any license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

(s) Insurance . Each Loan Party keeps its property adequately insured and maintains (i) insurance to such extent and against such risks, including fire, as is customary with companies in the same or similar businesses, (ii) workmen’s compensation insurance in the amount required by applicable law, (iii) public liability insurance, which shall include product liability insurance, in the amount customary with companies in the same or similar business against claims for personal injury or death on properties owned, occupied or controlled by it, and (iv) such other insurance as may be required by law (including, without limitation, against larceny, embezzlement or other criminal misappropriation). Schedule 6.01(s) sets forth a list of all insurance maintained by each Loan Party on the Effective Date.

(t) Use of Proceeds . The From and after the Amendment No. 3 Effective Date, the proceeds of the Loans (other than the First Amendment Term Loan B ) shall be used to (a ) finance a portion of the Purchase Price for the Funko Acquisition, (b ) pay fees and expenses in connection with the transactions contemplated hereby , (c) refinance certain Indebtedness of the Borrowers, (d and (b ) fund working capital and other general corporate purposes of the Borrowers and (e) to fund the working capital adjustment in connection with the Acquisition, if any . The proceeds of the First Amendment Term Loan B shall be used to fund a distribution to be paid by the Ultimate Parent to its direct and indirect investors in an aggregate amount not to exceed $50,000,000. The Letters of Credit will be used for working capital and other general corporate purposes.

(u) Solvency . After giving effect to the transactions contemplated by this agreement and before and after giving effect to each Loan and Letter of Credit, the Loan Parties are Solvent on a consolidated basis. No Borrower is contemplating either an Insolvency Proceeding or the liquidation of all or a major portion of such Loan Party’s assets or property.

 

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(v) Location of Bank Accounts . Schedule 6.01(v) sets forth a complete and accurate list as of the Effective Date of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each Loan Party, together with a description thereof ( i.e. , the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof).

(w) Intellectual Property . Except as set forth on Schedule 6.01(w), each Loan Party owns or licenses or otherwise has the right to use all patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other intellectual property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(w) is, except for commercially available, off the shelf software and intellectual property registered outside the United States, a complete and accurate list as of the Effective Date of all such material registered patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other material registered intellectual property rights of each Loan Party. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened, except for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the best knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(x) Material Contracts . Set forth on Schedule 6.01(x) is a complete and accurate list as of the Effective Date of all Material Contracts of each Loan Party. As of the Effective Date, each such Material Contract (i) is in full force and effect and is binding upon and enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, and (ii) is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, of any other Person that could reasonably be expected to result in a Material Adverse Effect, any other party thereto.

(y) Investment Company Act . None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.

 

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(z) Employee and Labor Matters . As of the Effective Date, there is (i) no unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance in existence or, to any Loan Party’s knowledge, pending or threatened against any Loan Party or (iii) to the best knowledge of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing activity taking place with respect to any of the employees of any Loan Party. No Loan Party or any of its Subsidiaries has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act (“ WARN ”) or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of any Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from any Loan Party 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 such Loan Party, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(aa) Customers and Suppliers . Except as could not reasonably be expected to result in a Material Adverse Effect, there exists no actual or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand; and there exists no present state of facts or circumstances that could reasonably be expected to give rise to or result in any such termination, cancellation, limitation, modification or change.

(bb) [ Intentionally Omitted ].

(cc) Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN . Schedule 6.01(cc) sets forth a complete and accurate list as of the date hereof of (i) the exact legal name of each Loan Party, (ii) the jurisdiction of organization of each Loan Party, (iii) the organizational identification number of each Loan Party (or indicates that such Loan Party has no organizational identification number), (iv) each place of business of each Loan Party, (v) the chief executive office of each Loan Party and (vi) if applicable, the federal employer identification number of each Loan Party.

(dd) Locations of Collateral . There is no location at which any Loan Party has any Collateral (except for Inventory in transit) other than those locations listed on Schedule 6.01(dd) or Schedule 6.01(ee) and any other locations reported (or permitted to be exempt from reporting) pursuant to Section 7.01(a)(v). Schedule 6.01(dd) hereto contains a true, correct and complete list, as of the Effective Date, of the legal names and addresses of each warehouse at which Collateral of each Loan Party is stored.

(ee) Security Interests . The Security Agreement creates in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, a legal, valid and enforceable security interest in the Collateral secured thereby. Upon the filing of the UCC-1 financing statements and the recording of the Collateral Assignments for Security referred to in each Security Agreement in the United States Patent and Trademark Office, the United States

 

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Copyright Office or the equivalent authority in the other relevant jurisdictions, as applicable, such security interests in and Liens on the Collateral granted thereby shall be perfected, to the extent perfection can be accomplished through such filings, first priority security interests subject only to Permitted Liens, and no further recordings or filings are or will be required to maintain such perfected status of such security interests and Liens, other than (i) the filing of continuation statements in accordance with applicable law and (ii) the recording of the Collateral Assignments for Security pursuant to each Security Agreement in the United States Patent and Trademark Office, the United States Copyright Office or the equivalent authority, if any, in the other relevant jurisdictions, as applicable, with respect to after-acquired U.S. patent and trademark applications and registrations and U.S. copyrights.

(ff) [ Intentionally Omitted]

(gg) Acquisition Documents . The Parent has delivered to the Agents complete and correct copies of the Acquisition Documents, including all schedules and exhibits thereto. The Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the Acquisition Documents by Parent and the Buyer, and, to the knowledge of Parent, each of the other parties thereto, has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person. No material authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority is required for such sale other than such as have been obtained on or prior to the Effective Date or are not required to be obtained as a condition to closing thereunder. Each Acquisition Document is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms.

(hh) [ Intentionally Omitted ].

(ii) Anti-Terrorism Laws .

(i) General . None of the Loan Parties nor any Affiliates of any Loan Parties, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Terrorism Laws.

(ii) None of the Loan Parties, nor any Affiliates of any Loan Parties, or their respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is any of the following (each a “ Blocked Person ”):

(A) a Person that is blocked pursuant to any of the OFAC Sanctions Programs, including a Person named on OFAC’s list of Specially Designated Nationals and Blocked Persons;

 

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(B) a Person that is owned or controlled by, or that owns or controls, or that is acting for or on behalf of, any Person described in (A), above;

(C) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; and

(D) a Person that is affiliated or associated with a Person described in (A) through (C), above.

(iii) None of the Loan Parties, nor any of their agents acting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, unless authorized by the U.S. Government (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any OFAC Sanctions Programs.

(iv) Without limiting or contradicting (or being limited or contradicted by) the foregoing, (x) no Covered Entity is a Sanctioned Person and (y) no Covered Entity, either in its own right or through any third party, (A) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (C) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.

ARTICLE VII.

COVENANTS OF THE LOAN PARTIES

Section 7.01 Affirmative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party will, unless the Required Lenders shall otherwise consent in writing:

(a) Reporting Requirements . Furnish to each Agent:

(i) as soon as available, and in any event within 30 days after the end of each fiscal month of the Borrowers commencing with the first fiscal month of the Borrowers ending after the Effective Date, internally prepared consolidated balance sheets, statements of operations and statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year, and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year (it being agreed that the requirements of this clause (A) shall not apply so long as there is no corresponding month in the preceding Fiscal Year that occurred after the Effective Date), and (B) the projections delivered pursuant to Section 7.01(a)(vii), all in reasonable detail, and, in the case of the financial statements, certified by an Authorized Officer of the Administrative Borrower as having been prepared on a basis consistent with prior practices and fairly presenting, in all material respects, the financial position of the Ultimate Parent and its Subsidiaries for such period, subject to the absence of footnotes and normal year-end adjustments;

 

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(ii) [reserved];

(iii) as soon as available, and in any event within 120 days (or, in the case of Fiscal Year 2015, 135 days) after the end of each Fiscal Year of the Ultimate Parent and its Subsidiaries, consolidated and consolidating balance sheets, consolidated and consolidating statements of operations and consolidated and consolidating statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such Fiscal Year, and, with respect to such consolidated balance sheets, statements of operations, and statement of cash flow, accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted auditing standards, of one of the “Big Four” nationally recognized certified public accounting firms, McGladrey LLP, Grant Thornton LLP, BDO USA, LLP, Berntson Porter & Company PLLC or any other independent certified public accountants of recognized standing selected by the Ultimate Parent and reasonably satisfactory to the Agents (which opinion shall be without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit, or (z) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03);

(iv) (x) simultaneously with the delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a) or (y) within 15 days after delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (i) of this Section 7.01(a) for the fiscal months ending in March, June and September, commencing with the fiscal month ending on or about March 31, 2016, a certificate of an Authorized Officer of the Administrative Borrower (A) stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Ultimate Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Ultimate Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the existence during such period of an Event of Default or Default or, if an Event of Default or Default existed, describing the nature and period of existence thereof and the action which the Ultimate Parent and its Subsidiaries propose to take or have taken with respect thereto and (B) (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03, (2) including a discussion and analysis of the financial condition and results of operations of the Ultimate Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the financial projections for such period and the figures for the corresponding period in the previous Fiscal Year and (3) attaching a schedule listing the Net Cash Proceeds from each Disposition and the amount of insurance proceeds or condemnation awards received by the Loan Parties during the immediately preceding fiscal quarter that are subject to the prepayment requirements set forth in Sections 2.05(c)(v) and (vii), respectively, and indicating whether such proceeds shall be used to purchase, replace, repair or restore properties or acquire assets used in such Person’s business within a period specified in such certificate not to exceed 180 days after the date of receipt of such proceeds and setting forth estimates of the amount of such proceeds to be so expended;

 

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(v) as soon as available and in any event within 20 days after the end of each fiscal month of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, reports in form and detail reasonably satisfactory to the Agents and certified by the CFO, or other Authorized Officer of the Administrative Borrower as being accurate and complete (A) listing all Accounts Receivable of the Loan Parties as of the last day of such fiscal month, which shall include the amount and age of each such Account Receivable, showing separately those which are more than 30, 60, 90 and 120 days old and a description of all Liens, set-offs, defenses and counterclaims with respect thereto, together with a reconciliation of such schedule with the schedule delivered to the Agents pursuant to this clause (v)(A) for the immediately preceding fiscal month and such other information as any Agent may request, (B) listing all accounts payable of the Loan Parties as of the last day of such fiscal month which shall include the amount and age of each such account payable and such other information as any Agent may request, (C) listing separately all Inventory and In-Transit Inventory of the Loan Parties as of the last day of such fiscal month, and containing a breakdown of such Inventory by type and amount, the cost value thereof (by location), the warehouse and production facility location; provided that, notwithstanding the foregoing, Loan Parties shall not be obligated or required to include in such Inventory reporting under this clause (C) any breakdown of Inventory located at any location(s) which are exempt from reporting under clause (2) of the final proviso to this sentence (but further provided that nothing in the foregoing proviso shall be interpreted or construed to contradict or limit or provide any exception to the provisions of clause (i) of the definition of Eligible Inventory, and without limiting the generality of such clause (i), the parties hereto agree that no Inventory at any location shall be Eligible Inventory unless Loan Parties have elected to include a breakdown of the Inventory at such location in the most recently delivered Borrowing Base Certificate), (D) including a current schedule of (x) all locations of vendors and processors (including the legal name (and any applicable trade name) of such vendor or processor and the full address of such location) at which any Inventory is currently located and/or is customarily located from time to time, and (y) all other locations in the United States at which any Collateral (other than inventory in transit and mobile equipment, and items located at the premises of other Persons for service or repair in the ordinary course of business) is kept (including, in the case of any such location not owned by Loan Parties, the legal name (and any applicable trade name) of the landlord, warehouseman, bailee or other owner/operator of such location and the full address of such location); provided that, notwithstanding anything to the contrary in the foregoing or in Section 6.01(dd) hereof, (1) it shall not be a violation of this Section 7.01(a)(v) or of Section 6.01(dd) for any Inventory or Collateral to be kept at any location not previously disclosed to Administrative Agent so long as such location is disclosed to Administrative Agent in the first monthly collateral reports delivered by Loan Parties under this clause (D) following the first date at which any such Inventory or Collateral is kept at such location, and (2) Loan Parties shall not be obligated to report or disclose any such location, and may keep Inventory or other Collateral at any such location despite such non-disclosure, to the extent the aggregate Book Value of all Inventory and fair market value of all other Collateral held at any such non-disclosed individual location does not exceed $500,000 at any one time and the aggregate Book Value of all Inventory and fair market value of all other Collateral held at all such non-disclosed locations does not exceed $2,500,000 in the aggregate at any one time; along with such other information as any Agent may request, all in detail and in form reasonably satisfactory to the Administrative Agent and (E) including appropriate details of the royalty accrual account, the prepaid royalty account and the deferred revenue account.

 

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(vi) as soon as available and in any event within 20 days after the end of each fiscal month (or, if (x) an Event of Default has occurred and is continuing or (y) average Availability is less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, within 3 Business Days after the end of each week, but only until such time as no Event of Default is continuing and the average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate) of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, a Borrowing Base Certificate, current as of the close of business on the last Business Day of the most recently ended month (or week, if applicable), supported by schedules showing the derivation thereof and containing such detail and other information the Administrative Agent may reasonably request from time to time, including, at any time when Eligible Special Inventory is permitted to be included in the calculation of the Borrowing Base, a schedule of the Eligible Special Inventory, itemizing the Book Value of the Eligible Special Inventory for each licensor in relation thereto; provided that (A) the Borrowing Base set forth in the Borrowing Base Certificate shall be effective from and including the date such Borrowing Base Certificate is duly received by the Administrative Agent but not including the date on which a subsequent Borrowing Base Certificate is received by the Administrative Agent, unless the Administrative Agent disputes the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof by notice of such dispute to the Administrative Borrower, provided that the Borrowers at their discretion may provide an updated Borrowing Base Certificate establishing a new Borrowing Base level based on a report of weekly or daily application of sales, cash and credits on Accounts Receivable of the Borrowers and weekly change in volume and value of Inventory of the Borrowers and (B) in the event of any dispute about the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof, the Administrative Agent’s good faith judgment shall control;

(vii) as soon as available and in any event not later than 30 days after the end of each Fiscal Year, financial projections for the Ultimate Parent and its Subsidiaries, supplementing and superseding the financial projections referred to in Section 6.01(g)(ii)(A), prepared on a monthly basis (in the case of income statements) and a quarterly basis (in the case of balance sheets, statement of operations and statement of cash flows) and otherwise in form and substance reasonably satisfactory to the Agents, for the immediately succeeding Fiscal Year for the Ultimate Parent and its Subsidiaries, all such financial projections to be prepared on a reasonable basis and in good faith, and to be based on assumptions believed by the Ultimate Parent to be reasonable at the time made and from the best information then available to the Ultimate Parent;

(viii) [reserved];

(ix) [reserved];

 

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(x) promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party by such Governmental Authority other than routine inquiries or other inquires where liability is not reasonably expected to exceed $1,000,000, but excluding any such documents or information the delivery of which would violate applicable law or result in a breach of a Loan Party’s attorney-client privilege;

(xi) as soon as practicable, and in any event within 3 days after an Authorized Officer of any Loan Party becomes aware of the occurrence of an Event of Default or Default or the occurrence of any event or development that such Authorized Officer has determined could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;

(xii) (A) as soon as practicable and in any event within 10 days after any Loan Party or any its Subsidiaries thereof knows that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect to any Employee Plan sponsored by any Loan Party has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, (B) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, and (D) promptly and in any event within 3 days after receipt thereof by any Loan Party from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (E) promptly and in any event within 10 days after any Loan Party or any of its Subsidiaries thereof sends notice of a plan closing or mass layoff (as defined in WARN) to employees, copies of each such notice send by such Loan Party or any of its Subsidiaries;

(xiii) promptly, but in any event not later than 5 Business Days after, any determination by an Authorized Officer that an action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which could be reasonably expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect, notice thereof;

(xiv) as soon as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives relating to a default or claimed default or termination in connection with any Material Contract or any Acquisition Document;

 

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(xv) as soon as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party;

(xvi) promptly after the sending or filing thereof, copies of any material notices not delivered in the ordinary course of business that any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange;

(xvii) promptly upon receipt thereof, copies of any management letters, if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;

(xviii) promptly upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent may from time to time may reasonably request;

(xix) promptly upon learning thereof, such information concerning any material loss or destruction of, or substantial damage to, any of the Collateral, in excess of $1,000,000 and

(xx) promptly notify the Agents if the President, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer or Global Head of Sales of any Loan Party becomes aware of any Accounts Receivable of any Borrower in excess of $1,000,000 individually arises out of contracts with the federal government of the United States (or any other United States federal Governmental Authority) which are either (x) eligible for assignment under the Federal Assignment of Claims Act or (y) otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section 9-406 of the Uniform Commercial Code, and in any such case, if applicable, such Borrower will execute any instruments and take any steps required by the Agents in order that either all monies due or to become due under any such Account Receivable shall be assigned to the Collateral Agent and notice thereof given to such Governmental Authority under the Federal Assignment of Claims Act or all necessary steps be taken to comply with such restrictions on assignment, as applicable.

(b) Additional Guaranties and Collateral Security. Cause :

(i) each Subsidiary (other than any Excluded Subsidiary) of any Loan Party that is not in existence on the Effective Date, to execute and deliver to the Collateral Agent promptly and in any event within 10 Business Days after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Guarantor or a Borrower, as applicable (provided that the Accounts Receivable or Inventory of any new Borrower shall not be included in the Borrowing Base until the applicable conditions set forth in the definitions of Eligible Accounts Receivable and Eligible Inventory are satisfied), (B) a supplement to the Security Agreement, (C) one or more Mortgages creating on the real property of such Subsidiary a

 

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perfected, first priority Lien on such real property to the extent required by Section 7.01(o), and such other Real Property Deliverables as may be required by the Collateral Agent and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Documents or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations in a manner consistent with the assets of the other corresponding Loan Parties that constitute Collateral; and

(ii) each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 10 Business Days after the formation or acquisition of such Subsidiary a Pledge Amendment or other comparable document (as defined in the applicable Security Documents), together with (A) if applicable, certificates evidencing all of the Equity Interests of such Subsidiary, (B) if applicable, undated stock powers or other appropriate instruments of assignment executed in blank with signature guaranteed, (C) such opinions of counsel as the Collateral Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent.

(iii) Notwithstanding the foregoing, no CFC of a Loan Party shall be required to become a Loan Party hereunder (and, as such, shall not be required to deliver the documents required by clause (i) above) and no Equity Interests of such CFC shall be required to be pledged or otherwise subject to a Lien under the Loan Documents if in any such case (x) adverse tax consequences could reasonably be expected to result therefrom or (y) such guarantee is prohibited by any Requirement of Law; provided , however , that if the Equity Interests of such CFC are owned by a Loan Party, such Loan Party shall deliver, all such documents, instruments, agreements (excluding any pledge agreement or other security document governed by the laws of any jurisdiction other than a jurisdiction of the United States), and certificates described in clause (ii) above to the Collateral Agent, and take all actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect a first-priority Lien (subject to Permitted Liens) in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, in sixty five percent (65%) of the voting Equity Interests of such CFC and one hundred percent (100%) of all other Equity Interests of such CFC owned by such Loan Party.

(c) Compliance with Laws, Etc. (i) Except as could not reasonably be expected to result in a Material Adverse Effect, comply and cause each of its Subsidiaries to comply, with all Requirements of Law (including, without limitation, all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), (ii) pay all national and Federal, and all material state and provincial taxes and governmental charges or levies imposed upon it or upon its income or profits or upon any of its properties, and (iii) pay all lawful claims which if unpaid could reasonably be expected to become a Lien or charge upon any of its properties, in each case, except in the cause of clauses (i) and (ii), (A) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (B) any such taxes, assessments and governmental charges the aggregate amount of which does not exceed $20,000.

 

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(d) Preservation of Existence, Etc. (i) Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its (A) existence (except to the extent otherwise permitted to merge, dissolve or liquidate pursuant to this Agreement) and (B) material rights and privileges, and (ii) become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary unless the failure to comply with clause (i)(B) or to be so qualified and in good standing could not reasonably be expected to result in a Material Adverse Effect.

(e) Keeping of Records and Books of Account . Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

(f) Inspection Rights . Permit the Agents and representatives of any Agent at any time and from time to time during normal business and, so long as no Event of Default shall have occurred and be continuing and no Agent shall reasonably believe that an Event of Default has occurred and remains continuing, upon not less than 30 days’ prior notice, in a manner which reasonably endeavors to minimize disruption to the business of the Loan Parties and at the expense of the Borrowers (subject to the limitations set forth in Section 2.06(f)), to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals, (and, if reasonably requested under the circumstances, Phase I Environmental Site Assessments) or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives, in each case subject to the limitations set forth Section 2.06(f). In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).

(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary in the proper conduct of its business in good working order and condition, ordinary wear and tear (and casualty events) excepted, and except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.

(h) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any

 

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Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and in any event in an amount, adequacy and scope reasonably satisfactory to the Agents. All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear, in case of loss, under a standard non-contributory “lender” or “secured party” clause and are to contain such other provisions as the Agents may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered to the Collateral Agent and the policies shall include a lender loss payable and additional insured endorsement in favor of the Collateral Agent and such other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ prior written notice (or 10 days’ prior written notice in the case of non-payment of premiums) to the Collateral Agent of the exercise of any right of cancellation. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrowers’ expense and without any responsibility on the Agents’ part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

(i) Obtaining of Permits, Etc. Except as could not reasonably be expected to result in a Material Adverse Effect, obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all material permits, licenses, authorizations, approvals, entitlements and accreditations which are necessary or useful in the proper conduct of its business.

(j) Environmental . (i) Keep any property either owned or operated by it or any of its Subsidiaries free of any Environmental Liens for which any Loan Party is liable; (ii) except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply with all Environmental Laws and provide to the Collateral Agent any documentation of such compliance which the Collateral Agent may reasonably request; (iii) (A) provide the Agents written notice within five (5) Business Days of any Release of a Hazardous Material in excess of any reportable quantity from or onto property owned or operated by it or any of its Subsidiaries and which any Loan Party is required to report to a Governmental Authority under any applicable Environmental Law, except to the extent that that the failure to issue such Report could not reasonably be expected to result in liability in excess of $500,000 and, (B) to the extent required by Environmental Laws in order to ensure material compliance therewith, take any Remedial Actions required to abate said Release, except to the extent that the failure to abate said Release could not reasonably be expected to result in a Material Adverse Effect; and (iv) provide the Administrative Agent with written notice within 10 days of the receipt of any of the following: (A) notice that an Environmental Lien has been filed against any property of any Loan Party or any of its Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Loan Party or any of its Subsidiaries; and (C) notice of a violation, citation or other administrative order which could reasonably be expected to have a Material Adverse Effect.

 

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(k) Further Assurances . Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any other property of any Loan Party and its Subsidiaries that is required to be included in the Collateral, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Agent, each Lender and the L/C Issuer the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document. In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i) authorizes each Agent to execute any such agreements, instruments or other documents in such Loan Party’s name and to file such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes each Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the date hereof.

(l) Change in Collateral; Collateral Records . Advise the Agents promptly, in sufficient detail, of any material adverse change relating to the Lien granted on any Collateral.

(m) Landlord Waivers; Collateral Access Agreements . (i) At any time (a) any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at such locations) or (b) any books and records of Loan Parties (other than books and records that are duplicative of those maintained at other locations) are located on any real property of a Loan Party (whether such real property is now existing or acquired after the Effective Date) which is not owned by a Loan Party, use commercially reasonable efforts to obtain written subordinations or waivers, in form and substance reasonably satisfactory to Collateral Agent, of all present and future Liens to which the owner or lessor of such premises may be entitled to assert against the Collateral; provided that in the event the Loan Parties are unable to obtain any such written subordination or waiver with respect to any such location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception) or any such location at which books and records are located (which books and records are not duplicative of those at any other location for which Reserves have been imposed or for which a subordinated or waiver contemplated by this paragraph has been obtained), the Administrative Agent may, in its Permitted Discretion, establish such Reserves as it deems necessary (in any event not to exceed three months rent for the applicable location) with respect to such location not earlier than 90 days after the Effective Date; and

 

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(ii) At any time any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at all such locations) is stored on the premises of a bailee, warehouseman, or similar party (excluding any vendor or processor), use commercially reasonable efforts to obtain written access agreements, in form and substance reasonably satisfactory to the Collateral Agent, providing for access to such Collateral located on such premises in order to remove such Collateral from such premises during an Event of Default; provided that in the event the Loan Parties are unable to obtain, or, in the case of any vendor or processor location, chose not to obtain, any such written access agreements with respect to any location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception or exception for vendor and processor locations), the Administrative Agent may, in its reasonable discretion, establish such Reserves as it deems necessary (in any event not to exceed three months of bailee fees, warehouseman fees, processing fees or similar fees owing to such bailee, warehouseman, vendor, processor or similar party for the applicable location) with respect to such location not earlier than 90 days after the Effective Date.

(n) Subordination . Cause all Indebtedness and other obligations now or hereafter owed by it to any of its Affiliates (other than, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout and the Funko Earnout Preferred Equity), to be subordinated in right of payment and security to the Indebtedness and other Obligations owing to the Agents and the Lenders in accordance with the Intercompany Subordination Agreement or such other subordination agreement in form and substance reasonably satisfactory to the Agents.

(o) After Acquired Real Property . Upon the acquisition by any Loan Party after the date hereof of any fee interest in any real property (wherever located) (each such interest being a “ New Facility ”) with a Current Value (as defined below) in excess of $500,000, promptly so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the “ Current Value ”). The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage and the other Real Property Deliverables. Upon receipt of such notice requesting a Mortgage, the Person that has acquired such New Facility shall promptly furnish to the Collateral Agent each of the applicable Real Property Deliverables, reasonably requested by the Collateral Agent. The Borrowers shall pay all fees and expenses, including reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 7.01(o).

(p) Fiscal Year . Cause the Fiscal Year of the Ultimate Parent and its Subsidiaries to end as set forth in the definition of “Fiscal Year” unless the Agents consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).

(q) [reserved].

(r) Lender Meetings . Upon the request of any Agent or the Required Lenders (which request, so long as no Event of Default shall have occurred and be continuing, shall not be made more than once during each Fiscal Year), participate in a meeting with the Agents and the Lenders at the Borrowers’ corporate offices (or at such other location as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders) at such time as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders.

 

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Section 7.02 Negative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Subsidiaries that are Loan Parties as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof); sell any of its property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable) with recourse to it or any of its Subsidiaries; other than, as to all of the above, Permitted Liens; provided, that, no Liens shall be permitted on any assets included in the Borrowing Base other than (i) the Liens of the Collateral Agent for the benefit of the Agents and the Lenders, and (ii) non-consensual liens arising by operation of applicable Law (and not under any contract) that are otherwise Permitted Liens and which are either (x) inchoate or (y) junior to the Liens of the Collateral Agent for the benefit of the Agents and the Lenders (provided that Administrative Agent may impose Reserves with respect to any Liens under this subclause (y)).

(b) Indebtedness . Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.

(c) Fundamental Changes; Dispositions . Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell, lease or sublease, transfer, assign or otherwise dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets (including accounts and rights to receive income), whether now owned or hereafter acquired (or agree to do any of the foregoing), or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided , however , that

(i) any wholly-owned Subsidiary of any Loan Party (other than Ultimate Parent or the Parent) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien

 

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thereon, are not adversely affected by such merger or consolidation and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation;

(ii) any Loan Party and its Subsidiaries may (A) sell Inventory in the ordinary course of business, (B) dispose of obsolete, worn-out or surplus equipment in the ordinary course of business, (C) sell or otherwise dispose of other property or assets (other than Accounts Receivable or Inventory of any Loan Party) for an aggregate amount not less than the fair market value of such property or assets, so long as (x) at least 85% of the consideration for each such Disposition is for cash and (y) the Loan Parties will be in compliance with the financial covenants set forth in Section 7.03 calculated on a pro forma basis to give effect to such Disposition, (D) consummate any transactions constituting a Permitted Investment, (E) use or transfer money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, and (F) enter into non-exclusive license agreements with respect to intellectual property rights in the ordinary course of business, provided that the Net Cash Proceeds of such Dispositions (1) in the case of clause (C) above, do not exceed $2,500,000 in the aggregate in any Fiscal Year and (2) in all cases, the applicable requirements of Section 2.05(c)(v) are satisfied;

(iii) any dormant Subsidiary of any Loan Party (other than a Borrower or the Parent), owning assets the aggregate value of which does not exceed $100,000 at any time, may wind-up, liquidate or dissolve, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of any wind-up, liquidation or dissolution involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such winding up, liquidation or dissolution, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such dissolution or liquidation and (E) the aggregate value of all such dormant Subsidiaries that wind-up, liquidate or dissolve does not exceed $500,000; and

(iv) any Subsidiary of any Loan Party (other than Ultimate Parent or the Parent), may merge with any Person in connection with a Permitted Acquisition, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of a merger involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation.

 

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(d) Change in Nature of Business .

(i) Make, or permit any of its Subsidiaries to make, any change in the nature of its business as described in Section 6.01(l).

(ii) Permit the Parent to have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), engage in any operations or business (other than the ownership of its Subsidiaries), or own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments).

(e) Loans, Advances, Investments, Etc. Make or commit or agree to make, or permit any of its Subsidiaries make or commit or agree to make (other than non binding commitments or commitments contingent upon the Payment in Full of the Obligations or the obtaining of the requisite approvals hereunder), any Investment in any other Person except for Permitted Investments.

(f) Lease Obligations . Create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction (other than any existing sale and leaseback transaction in effect on the Effective Date), or (ii) for the payment of rent for any real or personal property under leases or agreements to lease other than Operating Lease Obligations entered into in the ordinary course of business and Capitalized Lease Obligations otherwise permitted hereunder.

(g) [Reserved].

(h) Restricted Payments . (i) Declare or pay any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (ii) make any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any of its Subsidiaries or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (iii) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (iv) return any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (v) pay any management fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting or other services agreement to any of the shareholders or other equity holders of any Loan Party or any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party; provided , however , that (A) (I) the Loan Parties may make payments to or on behalf

 

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Parent or Ultimate Parent in an amount sufficient to pay franchise taxes and other costs and expenses required to be paid to maintain the legal existence of Parent and Ultimate Parent, solely to the extent such payments are actually applied to pay such franchise taxes, costs and expenses, (II) the Loan Parties may make payments to or on behalf of Parent and Ultimate Parent in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent and Ultimate Parent, in the case of this subclause (A)(II), in an aggregate amount not to exceed $100,000 in any Fiscal Year and (III) the Loan Parties may make tax distributions to or on behalf of the Ultimate Parent in amounts sufficient to enable Ultimate Parent to make all tax distributions required pursuant to the Funko LLC Agreement (it being understood that, if an Event of Default has occurred and is continuing, to the extent any such tax distributions made in accordance with Funko LLC Agreement results in distributions to (or for the account of) the Permitted Holders in excess of amounts required to be paid by the Permitted Holders in relation to the tax liabilities of its direct and indirect investors, the Permitted Holders shall cause such excess amount to be held by ACON Funko Investors, L.L.C. or a newly formed subsidiary that shall be a Guarantor (with recourse limited to the deposit account holding any such excess amount) in a controlled deposit account pledged to the Collateral Agent, and such excess amounts may be used to make equity contributions to the Borrower or to fund tax distributions to the Permitted Holders that would otherwise be permitted to be distributed by the Borrower to the extent such distributions are not duplicative of future permitted tax distributions made by the Loan Parties to their equity holders), (B) any Subsidiary of any Borrower may pay dividends to any Loan Party (other than the Parent or Ultimate Parent) or, in the case of any Subsidiary that is not a Loan Party, to any other Subsidiary, (C) the Parent and Ultimate Parent may pay dividends in the form of Qualified Equity Interests, (D) the Parent may pay Permitted Management Fees, so long as in the case of all such Permitted Management Fees other than reimbursement of expenses described in clause (b) of the definition of Permitted Management Fees: (1) no Default or Event of Default shall have occurred and be continuing, or would result from the making of such payment and (2) the Loan Parties would have been in compliance with the financial covenants set forth in Section 7.03 on a pro forma basis as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered under Section 7.01(a) after giving effect to such payment (as if made on the first day of such period); provided that to the extent that any Permitted Management Fees cannot be paid as a result of not satisfying all of the conditions described in clauses (1) and (2) above, such Permitted Management Fees shall be permitted to accrue and be paid at such time when (I) all conditions described in clauses (1) and (2) above are satisfied both before and after giving effect to such payment and (II) Availability is not less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount after giving effect to such payment, (E) the Loan Parties may make dividends, distributions or other payments for the purpose of making Permitted Funko Earnout Payments and the Underground Toys Earnout , (F) the Loan Parties may make dividends, distributions or other payments for the purpose of allowing the Ultimate Parent to make payments or redemptions in respect of all or a portion of the Funko Earnout Preferred Equity; provided , that any amounts funded by the Parent to the Ultimate Parent for such purpose may not be paid in cash if, at the time of the making of any such payment or after giving effect to the making of any such payment, (i) there exists an Event of Default or (ii) Availability is less than $15,000,000 (in which case the payment of such amount in cash shall be permitted at such time as the conditions described in clauses (i) and (ii) are no longer continuing), (G) the Loan Parties may pay the Funko Transaction Costs incurred in connection with the closing on the Effective Date,

 

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and (H) the Loan Parties may make distributions to the Ultimate Parent solely to enable the Ultimate Parent to, and the Ultimate Parent may, pay a distribution in an amount not to exceed $50,000,000 on the Amendment No. 1 Effective Date or within five (5) Business Days thereof . , (I) the Loan Parties may make distributions to the Ultimate Parent solely to enable the Ultimate Parent to, and the Ultimate Parent may, pay a distribution in an amount not to exceed $50,000,000 on the Amendment No. 3 Effective Date or within five (5) Business Days thereof and (J) non-cash repurchases of any Equity Interests in Ultimate Parent in exchange for the termination, reduction or forgiveness of loans and advances of funds used to purchase such Equity Interests in accordance with clause (j) of the definition of “Permitted Investments”, and any further distributions to the Ultimate Parent of the Equity Interests that are acquired in such transaction.

(i) Federal Reserve Regulations . Permit any Loan or the proceeds of any Loan under this Agreement to be used for any purpose that would cause such Loan to be a purpose credit under the provisions of Regulation T, U or X of the Board.

(j) Transactions with Affiliates . Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) in the ordinary course of business in a manner and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof, (ii) transactions with another Loan Party or transactions among Subsidiaries not involving any Loan Party, (iii) transactions permitted by Section 7.02(e) and Section 7.02(h) and (iv) sales of Qualified Equity Interests of the Ultimate Parent to Affiliates of the Ultimate Parent not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in connection therewith.

(k) Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries . Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Loan Party or any of its Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its Subsidiaries or (iv) to transfer any of its property or assets to any Loan Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the foregoing; provided , however , that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall prohibit or restrict compliance with:

(A) this Agreement and the other Loan Documents;

(B) any agreements in effect on the date of this Agreement and described on Schedule 7.02(k) to the extent any encumbrance or restriction contained therein could reasonably be expected to have an adverse impact in any material respect on the interests of any Loan Party, the Agents or the Lenders;

 

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(C) any applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);

(D) in the case of clause (iv), any agreement setting forth customary restrictions on the subletting, assignment or transfer of any property or asset that is the subject of any lease, license, conveyance, sale or similar transaction; or

(E) in the case of clause (iv), any agreement, instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto.

(l) Limitation on Issuance of Equity Interests . Except for Dispositions permitted by Section 7.02(c), issue or sell, or permit any of its Subsidiaries to issue or sell, any shares of its Equity Interests, any securities convertible into or exchangeable for its Equity Interests or any warrants; provided that the Ultimate Parent may issue Qualified Equity Interests so long as no Change of Control would result therefrom and any Subsidiary of the Ultimate Parent may issue Equity Interests to any Loan Party or any Subsidiary thereof.

(m) Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.

(i) Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any Indebtedness of a Loan Party or of any instrument or agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would (A) shorten the final maturity or average life to maturity of, or require any payment to be made earlier than the date originally scheduled on, such Indebtedness, (B) change the subordination provision, if any, of such Indebtedness in a manner adverse to the Lenders, or (C) otherwise be on terms and conditions that, taken as a whole, are adverse to the Lenders in any material respect.

(ii) (A) except for (w) intercompany loans, (x) the Obligations, (y) the termination of Capitalized Leases in respect of assets no longer used in the business of any Loan Party and (z) Indebtedness of any Subsidiary that is not a Loan Party, make any voluntary or optional payment (including, without limitation, any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any Indebtedness for borrowed money of any Loan Party (including, without limitation, by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Indebtedness when due), or refund, refinance, replace or exchange any other Indebtedness for any such Indebtedness (except to the extent such Indebtedness is otherwise permitted by the definition of “Permitted Indebtedness”), or (B) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement with respect thereto;

 

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(iii) amend, modify or otherwise change its name, jurisdiction of organization, organizational identification number or FEIN, except that a Loan Party may (A) change its name, jurisdiction of organization, organizational identification number or FEIN in connection with a transaction permitted by Section 7.02(c) and (B) change its name upon at least 15 days’ prior written notice by the Administrative Borrower to the Collateral Agent (or such shorter period as may be approved by the Collateral Agent in its sole discretion) of such change and so long as, at the time of such written notification, such Person provides any financing statements or fixture filings necessary to perfect and continue perfected the Collateral Agent’s Liens;

(iv) amend, modify or otherwise change any of its Governing Documents, including, without limitation, by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it, with respect to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iv) that either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or

(v) agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment, modification, change or waiver would be adverse in any material respect to any Loan Party or any of its Subsidiaries or the Agent and the Lenders.

(n) Investment Company Act of 1940 . Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its Subsidiaries to become subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

(o) Compromise of Accounts Receivable . Compromise or adjust any material amount of the Accounts Receivable (or extend the time of payment with respect to any material amount of the Accounts Receivable), or accept any material returns of Inventory or grant any material discounts, allowances or credits or permit any of its Subsidiaries that are Loan Parties to do so other than as may be approved by the Administrative Agent in its sole discretion or (x) in the ordinary course of its business or (y) any such action outside the ordinary course of business made in the commercially reasonable business judgment of any Borrower exercised in good faith provided that (1) no such non-ordinary course of business action may involve any amount exceeding $5,000,000 in any one case and (2) in the event any one or more action(s) occurring during any period between delivery of Borrowing Base Certificates that involves an amount of $500,000 individually or in the aggregate in respect of Eligible Accounts Receivable that were included in the most recently delivered Borrower Base Certificate, Borrowers will deliver an updated Borrowing Base Certificate to Administrative Agent within five (5) Business Days.

(p) [reserved].

 

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(q) ERISA .

(i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section 4069 of ERISA; (ii) fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; or (iii) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Internal Revenue Code on or before the due date for such installment or other payment.

(ii) Non-U.S. Plan . Fail to make any contribution required by applicable law or by the terms of any Non-U.S. Plan

(r) Environmental . Except as could not reasonably be expected to result in a Material Adverse Effect, permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned or leased by it or any of its Subsidiaries, except in compliance with Environmental Laws.

(s) Limitations on Negative Pledges . Enter into, incur or permit to exist, or permit any Loan Party to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Loan Party to create, incur or permit to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following: (i) this Agreement and the other Loan Documents, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section 7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, (iv) customary provisions in leases, licenses and contracts restricting the assignment or sublet thereof, and (v) restrictions arising under applicable law.

(t) Anti-Terrorism Laws . (i) None of the Loan Parties, nor any of their Affiliates or agents shall:

(A) conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person in violation of any Anti-Terrorism Law,

(B) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the OFAC Sanctions Programs in violation of any Anti-Terrorism Law, or

(C) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the OFAC Sanctions Programs, the USA PATRIOT Act or any other Anti-Terrorism Law.

 

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(ii) The Borrowers shall deliver to the Lenders any certification or other evidence reasonably requested from time to time by any Lender in its Permitted Discretion, confirming the Borrowers’ compliance with this Section 7.02(t).

(iii) Without limiting or contradicting (or being limited or contradicted by) the foregoing, Loan Parties further covenants and agree that: (i) no Covered Entity will engage in activities that provide basis for designation as a Sanctioned Person, (ii) no Covered Entity, either in its own right or through any third party, will (A) have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (C) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (D) use the Loans to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law, (iii) the funds used to repay the Obligations will not be derived from any unlawful activity, (iv) each Covered Entity shall comply with all Anti-Terrorism Laws and (v) the Borrowers shall promptly notify the Agent in writing upon the occurrence of a Reportable Compliance Event.

Section 7.03 Financial Covenants. So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Senior Leverage Ratio . Permit the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be greater than the ratio set forth opposite such date:

 

Fiscal Quarter Ending On or About

   Senior Leverage Ratio  

March 31, 2016

     2.35:1.00  

June 30, 2016

     2.97:1.00  

September 30, 2016

     3.76:1.00  

December 31, 2016

     3.56:1.00  

March 31, 2017

     3.40:1.00  

June 30, 2017

     3.26:1.00  

September 30, 2017

     3.25:1.00  

December 31, 2017 and each Fiscal Quarter ended thereafter

     2.83:1.00  

 

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(b) Fixed Charge Coverage Ratio . Permit the Fixed Charge Coverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be less than the ratio set forth opposite such date:

 

Fiscal Quarter Ending On or About

   Fixed Charge Coverage Ratio  

March 31, 2016

     1.05:1.00  

June 30, 2016

     1.05:1.00  

September 30, 2016

     1.05:1.00  

December 31, 2016

     1.10:1.00  

March 31, 2017

     1.10:1.00  

June 30, 2017

     1.10:1.00  

September 30, 2017

     1.10:1.00  

December 31, 2017 and each Fiscal Quarter ended thereafter

     1.10:1.00  

ARTICLE VIII.

MANAGEMENT, COLLECTION AND STATUS OF

ACCOUNTS RECEIVABLE AND OTHER COLLATERAL

Section 8.01 Collection of Accounts Receivable ; Management of Collateral . (a) The Loan Parties shall (i) establish and maintain cash management services of a type and on terms reasonably satisfactory to the Agents (it being understood that the cash management services in effect on the Effective Date are satisfactory to the Agents) at one or more of the banks set forth on Schedule 8.01 (each a “ Cash Management Bank ”) and (ii) deposit or cause to be deposited promptly, and in any event no later than the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral, all Collections (of a nature susceptible to a deposit in a bank account), and all other amounts received by any Loan Party (including payments made by Account Debtors directly to any Loan Party and remittances on credit card sales) into a Cash Management Account.

(b) Subject to Section 5.03(a) and 8.01(a), and except as otherwise agreed by the Agents, the Loan Parties shall, with respect to each Cash Management Account, deliver to the Collateral Agent a Cash Management Agreement with respect to such Cash Management Account. The Loan Parties shall not maintain cash, Cash Equivalents or other amounts in any deposit account or securities account, unless the Collateral Agent shall have received a Cash Management Agreement in respect of each such deposit account or securities account (other than accounts excluded from the definition of “Cash Management Accounts”).

 

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(c) [Intentionally Omitted].

(d) Upon the terms and subject to the conditions set forth in a Cash Management Agreement with respect to a Cash Management Account, all amounts received in such Cash Management Account shall at the Collateral Agent’s direction be wired each Business Day into the applicable Administrative Agent’s Account, except that, so long as (i) no Event of Default has occurred and is continuing and (ii) average Availability is greater than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, no Agent will direct any Cash Management Bank to transfer funds in such Cash Management Account to the Administrative Agent’s Account. If the Collateral Agent is sweeping cash from the Cash Management Accounts into the Administrative Agent’s Account in accordance with the immediately preceding sentence, the Collateral Agent shall discontinue such cash sweep and allow the Loan Parties to withdraw cash from the Cash Management Accounts so long as (A) average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate and (B) the Cash Management Bank allows for the reversion of such cash dominion. For the avoidance of any doubt, during any cash dominion period as provided for in the preceding sentence, (x) Administrative Agent may sweep cash from any Cash Management Account maintained with Administrative Agent to the Administrative Agent’s Account, and may request that Collateral Agent (and upon any such request Collateral Agent shall) sweep cash from the Cash Management Accounts maintained with any bank or financial institution other than Administrative Agent to the Administrative Agent’s Account.

(e) So long as no Default or Event of Default has occurred and is continuing, the Borrowers may, upon notice to the Collateral Agent, amend Schedule 8.01(A) to add or replace a Cash Management Bank or Cash Management Account; provided , however , that (i) such prospective Cash Management Bank shall be reasonably satisfactory to the Collateral Agent, and except in the case of accounts established with the Administrative Agent, the Collateral Agent shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) prior to the time of the opening of such Cash Management Account, the applicable Loan Party and such Cash Management Bank shall have executed and delivered to the Collateral Agent a Cash Management Agreement. Each Loan Party shall close any of its Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event, to the extent reasonably practicable, within 30 days of notice from the Collateral Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion, or that the operating performance, funds transfer, or availability procedures or performance of such Cash Management Bank with respect to Cash Management Accounts or the Collateral Agent’s liability under any Cash Management Agreement with such Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion.

 

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(f) The Cash Management Accounts shall be cash collateral accounts, with all cash, checks and similar items of payment in such accounts securing payment of the Obligations, and in which the Loan Parties are hereby deemed to have granted a Lien to the Collateral Agent for the benefit of the Agents and the Lenders. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by any Loan Party from any of its Account Debtors, as proceeds from Accounts Receivable of such Loan Party or (subject to the provisions of Section 2.05(c)(v) and (vii) with respect to the proceeds of Dispositions) as proceeds of any other Collateral shall be held by such Loan Party in trust for the Agents and the Lenders and if of a nature susceptible to a deposit in a bank account, upon receipt be deposited by such Loan Party in original form and no later than the next Business Day after receipt thereof into a Cash Management Account. During any time when the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d) above, no Loan Party shall commingle such collections with the proceeds of any assets not included in the Collateral. No checks, drafts or other instrument received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such instruments have actually been collected.

(g) Nothing herein contained shall be construed to constitute any Agent as agent of any Loan Party for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.

Section 8.02 Covenant Re-Dating; Pledge of Credit . (a) No Loan Party shall re-date any invoice or sale or make sales on extended dating beyond that which is customary in the ordinary course of its business and in the industry; and (b) no Loan Party is or shall be entitled to pledge any Agent’s or any Lender’s credit on any purchases or for any purpose whatsoever.

Section 8.03 Collateral Custodian . Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent or its designee may at any time and from time to time employ and maintain on the premises of any Loan Party a custodian selected by the Collateral Agent or its designee who shall have full authority to do all acts necessary to protect the Agents’ and the Lenders’ interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate with any such custodian and to do whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral. All costs and expenses incurred by the Collateral Agent or its designee by reason of the employment of the custodian shall be the responsibility of the Borrowers and charged to the Loan Account.

 

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ARTICLE IX.

EVENTS OF DEFAULT

Section 9.01 Events of Default . If any of the following Events of Default shall occur and be continuing:

(a) any Borrower shall fail to pay any principal of or interest on any Loan, any Agent Advance, any Reimbursement Obligation or any fee, indemnity or other amount payable under this Agreement or any other Loan Document when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and, in the case of interest, fees and indemnities, such failure continues for a period of three Business Days; provided that, in the case of any mandatory prepayment of principal in respect of the Revolving Loans under Section 2.05(c)(i) that becomes due and payable solely because of the imposition by Administrative Agent of a new Reserve, no Event of Default shall arise under this paragraph (a) until any failure to pay such mandatory prepayment shall continue for a period of ten (10) Business Days;

(b) any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C Issuer pursuant to any Loan Document, which representation or warranty is subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any respect when made or deemed made; or any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C Issuer pursuant to any Loan Document, which representation or warranty is not subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any material respect when made or deemed made;

(c) any Loan Party shall fail to perform or comply with any covenant or agreement contained in (i) Sections 7.01(a)(xi), 7.01(d)(i)(A), 7.01(f), 7.01(n), 7.02, 7.03 or ARTICLE VIII, (ii) Section 7.01(a)(xii) and Section 7.01(b), and such failure, if capable of being remedied, shall remain unremedied for 5 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party and (iii) Sections 7.01(a)(i), 7.01(a)(iii), 7.01(a)(iv), 7.01(a)(v), 7.01(a)(vi), 7.01(a)(vii), 7.01(a)(x), 7.01(a)(xiii), 7.01(a)(xiv), 7.01(h) and 7.01(l), and such failure, if capable of being remedied, shall remain unremedied for 3 Business Days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party, provided that Borrower may not exercise its rights of remedy under this clause (iii) more than one time in any calendar year;

 

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(d) any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be performed or observed by it and, except as set forth in subsections (a), (b) and (c) of this Section 9.01, such failure, if capable of being remedied, shall remain unremedied for 30 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party;

(e) any Loan Party or any of its Subsidiaries shall fail to pay any of its Indebtedness in excess of $2,500,000 (it being understood that, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout that are paid within the time frame provided for in the Funko LLC Agreement through the issuance of Funko Earnout Preferred Equity shall not constitute a failure to pay such Indebtedness), or any payment of principal, interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;

(f) any Loan Party or any of its Subsidiaries (i) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f);

(g) any proceeding shall be instituted against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, suspension of payments, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian, administrator or other similar official for any such Person or for any substantial part of its property, and, in the case of the Loan Parties, either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against any such Person or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur;

(h) [Intentionally Omitted].

 

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(i) any provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document;

(j) any Security Document, any Mortgage or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any Collateral purported to be covered thereby;

(k) one or more judgments, orders or awards (or any settlement of any claim that, if breached, could result in a judgment, order or award) for the payment of money exceeding $2,500,000 in the aggregate shall be rendered against any Loan Party and remain unsatisfied and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement, (ii) there shall be a period of 30 consecutive days after entry thereof during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, shall not be in effect, (iii) at any time during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, is in effect, such judgment, order, award or settlement is not bonded to the extent required to keep such stay in effect or (iv) any Lien arising from any such judgment, order, award or settlement over the assets of any Loan Party becomes enforceable and any step (including the taking of possession or the appointment of a receiver, managers or similar person) is taken to enforce that Lien; provided , however , that any such judgment, order, award or settlement shall not give rise to an Event of Default under this subsection (k) if and for so long as (A) the amount of such judgment, order, award or settlement is covered by a valid and binding policy of insurance between the defendant and the insurer covering full payment thereof and (B) such insurer has been notified, and has not disputed the claim made for payment, of the amount of such judgment, order, award or settlement;

(l) any cessation of a substantial part of the business of any Loan Party for a period which could reasonably be expected to have a Material Adverse Effect on the ability of the Loan Parties to continue its business on a profitable basis;

(m) the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Loan Party, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect;

(n) the indictment of any Loan Party under any criminal statute, or commencement of criminal or civil proceedings against any Loan Party or any of its Subsidiaries, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture to any Governmental Authority of any material portion of the property of such Person;

 

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(o) any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been given to any Loan Party by any Agent, (i) such Termination Event (if correctable) shall not have been corrected, and (ii) the Termination Event is reasonably anticipated to result in liability in excess of $2,500,000; or

(p) a Change of Control shall have occurred;

then, and in any such event, the any Agent may, and shall at the request of the Required Lenders, by notice to the Administrative Borrower, (i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the Loans and Reimbursement Obligations then outstanding to be due and payable, whereupon all or such portion of the aggregate principal of all Loans and Reimbursement Obligations, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and the other Loan Documents shall become due and payable immediately, together with the payment of the Applicable Prepayment Premium (if any) with respect to the Commitments so terminated and the Loans so repaid, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under applicable law, hereunder and under the other Loan Documents; provided , however , that upon the occurrence of any Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all Loans and Reimbursement Obligations then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement and the other Loan Documents shall become due and payable automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by each Loan Party. Subject to Section 4.03(b), the Administrative Agent may, after the occurrence and during the continuation of any Event of Default, require the Borrowers to Cash Collateralize each Letter of Credit then outstanding.

Notwithstanding anything to the contrary contained in Section 9.01, if the Loan Parties fail to comply with any financial covenant set forth in Section 7.03 as of any date or for any period, until the expiration of the tenth (10 th ) Business Day following the date on which financial statements are required to be delivered with respect to the applicable Fiscal Quarter hereunder, the Ultimate Parent may sell or issue common Qualified Equity Interest of the Ultimate Parent (the “ Permitted Cure Stock ”) the proceeds of which shall be deemed to increase Consolidated EBITDA (solely for purposes of Section 7.03(a) and (b) and not for any other purpose) on a dollar-for-dollar basis for the Fiscal Quarter most recently ended, with the effect that such financial covenants shall be recalculated on a pro forma basis, and, if after giving effect to such recalculation, the Borrowers are in compliance with such financial covenants, the Borrowers shall be deemed to have satisfied such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith; provided , however , that (i) such proceeds do not exceed the aggregate amount necessary to cure such Event of Default under Section 7.03(a) and (b) for the applicable period, (ii) the cure right under this paragraph shall be available up to four non-consecutive times during the term of this Agreement, (iii) the amount of proceeds arising from the issuance of the Permitted Cure Stock shall not represent more than 20% of Ultimate Parent’s TTM Consolidated EBITDA for the most recently ended Fiscal Quarter, (iv) Indebtedness shall not be deemed reduced by any payment

 

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made pursuant to Section 2.05(c)(ix) at any time that such related Consolidated EBITDA increase pursuant to this paragraph exists and (v) during the 10 Business Day period referred to above, neither the Administrative Agent nor any Lender may exercise any rights or remedies under Section 9.01 (or under any other Loan Document) on the basis of any actual or purported Event of Default under Section 9.01(c).

ARTICLE X.

AGENTS

Section 10.01 Appointment . Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to perform the duties of each such Agent as set forth in this Agreement including: (i) to receive on behalf of each Lender any payment of principal of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Lenders and paid to such Agent, and, subject to Section 2.02 of this Agreement, to distribute promptly to each Lender its Pro Rata Share of all payments so received; (ii) to distribute to each Lender copies of all material notices and agreements received by such Agent and not required to be delivered to each Lender pursuant to the terms of this Agreement, provided that the Agents shall not have any liability to the Lenders for any Agent’s inadvertent failure to distribute any such notices or agreements to the Lenders; (iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, and related matters and to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (iv) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Loan Document; (v) to make the Loans and Agent Advances, for such Agent or on behalf of the applicable Lenders as provided in this Agreement or any other Loan Document; (vi) to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by such Agent of the rights and remedies specifically authorized to be exercised by such Agent by the terms of this Agreement or any other Loan Document; (vii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document; and (viii) subject to Section 10.03 of this Agreement, to take such action as such Agent deems appropriate on its behalf to administer the Loans and the Loan Documents and to exercise such other powers delegated to such Agent by the terms hereof or the other Loan Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and instructions and the power to make or to refuse to make determinations and calculations) together with such powers as are reasonably incidental thereto to carry out the purposes hereof and thereof. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including, without limitation, enforcement or collection of the Loans), the Agents shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions of the Required Lenders shall be binding upon all Lenders and all makers of Loans; provided , however , that the L/C Issuer shall not be required to refuse to honor a drawing under any Letter of Credit and the Agents shall not be required to take any action which, in the reasonable opinion of any Agent, exposes such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law.

 

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Section 10.02 Nature of Duties; Delegation . (a) The Agents shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents. The duties of the Agents shall be mechanical and administrative in nature. The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan Parties and the value of the Collateral, and the Agents shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before the initial Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this Agreement or any other Loan Document. If any Agent seeks the consent or approval of the Required Lenders to the taking or refraining from taking any action hereunder, such Agent shall send notice thereof to each Lender. Each Agent shall promptly notify each Lender any time that the Required Lenders have instructed such Agent to act or refrain from acting pursuant hereto.

(b) Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article X to the extent provided by the applicable Agent.

(c) An Agent may employ agents and attorneys in fact and shall not be liable for the default or misconduct of any such agents or attorneys in fact selected by such Agent with reasonable care.

Section 10.03 Rights, Exculpation, Etc . The Agents and their directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by them under or in connection with this Agreement or the other Loan Documents, except for their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Loan as the owner thereof until the Agents receive written notice of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form reasonably satisfactory to the Agents; (ii) may consult with legal counsel (including, without limitation, counsel to any Agent or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts; (iii) make no warranty or representation to any Lender and shall not be

 

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responsible to any Lender for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall not be deemed to have made any representation or warranty regarding the existence, value or collectibility of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. The Agents shall not be liable for any apportionment or distribution of payments made in good faith pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount which they are determined to be entitled. The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to grant, and if such instructions are promptly requested, the Agents shall be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such instructions from the Required Lenders (unless unanimity is required). Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (unless unanimity is required).

Section 10.04 Reliance . Each Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.

Section 10.05 Indemnification . To the extent that any Agent or the L/C Issuer is not reimbursed and indemnified by any Loan Party, and whether or not such Agent or the L/C Issuer has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent or the L/C Issuer, reimburse and indemnify such Agent and the L/C Issuer from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, client charges and expenses of counsel or any other advisor to such Agent or the L/C Issuer), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Agent or the L/C Issuer in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by such Agent or the L/C Issuer under this Agreement or any of the other Loan Documents, in proportion to each Lender’s Pro Rata Share, including, without limitation, advances and disbursements made pursuant to Section 10.08; provided , however , that (a) no Lender shall be liable for any portion

 

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of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination that such liability resulted from such Agent’s or the L/C Issuer’s gross negligence or willful misconduct, and (b) only the Revolving Loan Lenders shall be obligated to indemnify the L/C Issuer for any amounts owing to the L/C Issuer pursuant to this Section 10.05. The obligations of the Lenders under this Section 10.05 shall survive the Payment in Full of the Loans and the termination of this Agreement.

Section 10.06 Agents Individually . With respect to its Pro Rata Share of the Total Commitment hereunder and the Loans made by it, each Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or maker of a Loan. The terms “Lenders” or “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender or one of the Required Lenders. Each Agent and their Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the other Lenders.

Section 10.07 Successor Agent . (a) Any Agent may at any time give at least thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days prior written notice of its resignation to the Lenders, the L/C Issuer and the Administrative Borrower, provided that, if the continuing Agent assumes all of the resigning Agent’s duties hereunder, such resigning Agent may provide notice on the effective date of its resignation. Upon receipt of any such notice of resignation, (i) the Required Lenders shall have the right, with the consent of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Collateral Agent, and (ii) the Collateral Agent shall have the right, with the consent of the Required Revolving Loan Lenders and of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Administrative Agent. If no such successor Agent shall have been so appointed by the Required Lenders or Collateral Agent, as applicable, and shall have accepted such appointment within thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders and the L/C Issuer, appoint a successor Agent. Whether or not a successor Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b) With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by such Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through such retiring Agent shall instead be made by or to the surviving Agent directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a

 

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successor’s Agent’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article, Section 12.04 and Section 12.16 shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the retiring Agent was acting as Agent.

Section 10.08 Collateral Matters.

(a) Each Agent may from time to time make such disbursements and advances (“ Agent Advances ”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate.

(b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b).

(c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon

 

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the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided , however , that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.

(d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.

(e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

 

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Section 10.09 Agency for Perfection . Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Agents and the Lenders as secured party. Should the Administrative Agent or any Lender obtain possession or control of any such Collateral, the Administrative Agent or such Lender shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s instructions. In addition, the Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.

Section 10.10 No Reliance on any Agent’s Customer Identification Program Certifications From Banks and Participants; USA PATRIOT Act .

(a) Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other requirements imposed by the USA PATRIOT Act or the regulations issued thereunder, including the regulations set forth in 31 CFR § 103.121, as hereafter amended or replaced (“ CIP Regulations ”), or any other Anti-Terrorism Laws or the equivalent on any applicable jurisdiction, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act. Each Lender, Affiliate, participant or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations or any equivalent provisions in any applicable jurisdiction.

(b) Each Lender or assignee or participant of a Lender that is not incorporated under the Laws of the United States of America or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to each Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1) within ten (10) days after the Effective Date, and (2) as such other times as are required under the USA PATRIOT Act.

 

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(c) The USA PATRIOT Act requires all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, any Agent or Lender may from time to time request, and each Loan Party shall provide to such Agent or Lender, such Borrower’s name, address, tax identification number and/or such other identifying information as shall be necessary for Lender to comply with the USA PATRIOT Act and any other Anti-Terrorism Law.

Section 10.11 No Third Party Beneficiaries . The provisions of this Article are solely for the benefit of the Agents, the Lenders and the L/C Issuer, and, except as provided in Sections 10.07 and 10.08, no Loan Party shall have rights as a third-party beneficiary of any of such provisions.

Section 10.12 No Fiduciary Relationship . It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

Section 10.13 Reports; Confidentiality; Disclaimers . By becoming a party to this Agreement, each Lender:

(a) is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report with respect to the Ultimate Parent or any of its Subsidiaries (each, a “ Report ”) prepared by or at the request of such Agent, and each Agent shall so furnish each Lender with each such Report,

(b) expressly agrees and acknowledges that the Agents (i) do not make any representation or warranty as to the accuracy of any Reports, and (ii) shall not be liable for any information contained in any Reports,

(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other party performing any audit or examination will inspect only specific information regarding the Ultimate Parent and its Subsidiaries and will rely significantly upon the Ultimate Parent’s and its Subsidiaries’ books and records, as well as on representations of their personnel,

(d) agrees to keep all Reports and other material, non-public information regarding the Ultimate Parent and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 12.21, and

(e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s

 

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purchase of, a loan or loans of the Borrowers, and (ii) to pay and protect, and indemnify, defend and hold any Agent and any other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys fees and costs) incurred by any such Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

(f) If another division or department of an Agent receives information, it may be treated as confidential to that division or department and the relevant Agent will not be deemed to have notice of it.

Section 10.14 Conduct of business by the Lenders and Agents . No provision of this Agreement will: (a) interfere with the right of any Lender or Agent to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; (b) oblige any Lender or Agent to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or (c) oblige any Lender or Agent to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Taxes.

ARTICLE XI.

GUARANTY

Section 11.01 Guaranty .

(a) Each Loan Party hereby jointly and severally and unconditionally and irrevocably guarantees the punctual payment when due and payable (whether at stated maturity, on demand, by acceleration or otherwise), of all Obligations of the Borrowers, now or hereafter existing under any Loan Document, whether for principal, interest (including, without limitation, all interest that accrues after the commencement of any Insolvency Proceeding with respect to any Borrower, whether or not a claim for post-filing interest is allowed in such Insolvency Proceeding), Letter of Credit Obligations, fees, commissions, expense reimbursements, indemnifications or otherwise, and whether accruing before or subsequent to the commencement of any Insolvency Proceeding with respect to any Borrower (notwithstanding the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code), and the due performance and observance by the Borrowers of their other Obligations now or hereafter existing in respect of the Loan Documents (such Obligations, to the extent not paid or performed by the Borrowers, being the “ Guaranteed Obligations ”, and agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer in enforcing any rights under the guaranty set forth in this ARTICLE XI.

(b) Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the applicable Guaranteed Obligations and would be owed by the Borrowers to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer under any Loan Document but for the fact that they are unenforceable or not

 

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allowable due to the existence of an Insolvency Proceeding involving the Borrowers. Notwithstanding any of the foregoing, Guaranteed Obligations shall not include any Excluded Hedge Liabilities. In no event shall the obligation of any Guarantor hereunder exceed the maximum amount such Guarantor could guarantee under any Debtor Relief Law.

Section 11.02 Guaranty Absolute . Each Loan Party jointly and severally guarantees that the Guaranteed Obligations, will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agents, the Lenders, the Bank Product Providers or the L/C Issuer with respect thereto. Each Guarantor party hereto agrees that this ARTICLE XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by any Agent or any Lender to any Collateral. The obligations of each Guarantor under this ARTICLE XI are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor party hereto to enforce such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in any such action or actions. The liability of each Guarantor party hereto under this ARTICLE XI shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor party hereto hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the applicable Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the applicable Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise and/or the making available of additional or new type of extensions of credit to any Loan Party that are of a different kind or nature from the types of extensions of credit available to the Loan Parties (or any of them) under the Loan Documents on the Effective Date;

(c) any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the applicable Guaranteed Obligations;

(d) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including, without limitation, any Agent, any Lender, any Bank Product Provider or the L/C Issuer;

(e) any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Loan Party; or

(f) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Agents, the Lenders, the Bank Product Providers or the L/C Issuer that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.

 

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This ARTICLE XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Agents, the Lenders, the Bank Product Providers, the L/C Issuer or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made.

Section 11.03 Waiver . Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this ARTICLE XI and any requirement that the Agents, the Lenders, the Bank Product Providers or the L/C Issuer exhaust any right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any Agent, any Lender, any Bank Product Provider or the L/C Issuer to seek payment or recovery of any amounts owed under this ARTICLE XI from any one particular fund or source or to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement that any Agent, any Lender, any Bank Product Provider, any Bank Product Provider or the L/C Issuer protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to any Guarantor. Each Guarantor agrees that the Agents, the Lenders, the Bank Product Providers and the L/C Issuer shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Guaranteed Obligations. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly made in contemplation of such benefits. Each Guarantor hereby waives any right to revoke this ARTICLE XI, and acknowledges that this ARTICLE XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

Section 11.04 Continuing Guaranty; Assignments . This ARTICLE XI is a continuing guaranty and shall (a) in the case of each Loan Party, remain in full force and effect until the later of the Payment in Full of the Guaranteed Obligations (other than indemnification obligations as to which no claim has been made) and all other amounts payable under this ARTICLE XI and the Final Maturity Date and (b) inure to the benefit of and be enforceable by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer and their successors, pledgees, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, its Loans, the Reimbursement Obligations and the Letter of Credit Obligations owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07.

Section 11.05 Subrogation . No Guarantor party hereto will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this ARTICLE XI, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agents, the Lenders, the Bank Product Providers and the L/C Issuer against any Loan

 

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Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall have been Paid in Full and the Final Maturity Date shall have occurred. If any amount shall be paid to any Guarantor party hereto in violation of the immediately preceding sentence at any time prior to the later of (x) the Payment in Full of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI and (y) the Final Maturity Date, such amount shall be held in trust for the benefit of the Agents, the Lenders, the Bank Product Providers and the L/C Issuer and shall forthwith be paid to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer to be credited and applied to the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Guaranteed Obligations, or other amounts payable under this ARTICLE XI thereafter arising. If (i) any Guarantor party hereto shall make payment to the Agents. the Lenders, the Bank Product Providers and the L/C Issuer of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall be Paid in Full and (iii) the Final Maturity Date shall have occurred, the Agents, the Lenders, the Bank Product Providers and the L/C Issuer will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor party hereto of an interest in the Guaranteed Obligations, resulting from such payment by such Guarantor party hereto.

ARTICLE XII.

MISCELLANEOUS

Section 12.01 Notices, Etc .

(a) Notices Generally . All notices and other communications provided for hereunder shall be in writing and shall be mailed (certified mail, postage prepaid and return receipt requested), telecopied or delivered by hand, Federal Express or other reputable overnight courier, if to any Loan Party, at the following address:

if to a Borrower, to it at the following address:

Funko, LLC

Funko Holdings LLC

1202 Shuksan Way

Everett, WA 98203

with a copy to:

c/o ACON Equity Management, LLC

1133 Connecticut Avenue, NW, Suite 700

 

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Washington, DC 20036

Attention: Mr. Ken Brotman

Telecopy: 202.454.1101

Telephone: 202.454.1111

with a copy to:

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Gordon C. Wilson, Esq.

Telecopy: 202-637-5910

Telephone: 202-637-5711

if to the Administrative Agent, to it at the following address:

PNC Bank, National Association

1600 Market Street

Philadelphia, PA 19103

Attention: Brandon Schmoyer

Telephone: 215.585.6960

Telecopier: 215.585.4771

with a copy to:

PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, PA 15219

Attention: Lisa Pierce

Telephone: (412) 762-6442

Facsimile: (412) 762-8672

with a copy to:

Hahn & Hessen LLP

488 Madison Avenue

New York, NY 10022

Attention: Steven J. Seif, Esq.

Telephone: 212-478-7200

Telecopier: 212-478-7400

if to the Collateral Agent, to it at the following address:

 

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Cerberus Business Finance, LLC

875 Third Avenue

New York, New York 10022

Attention: Gerald M. Daniello

Telephone: 212-284-7810

Telecopier: 212-284-7906

in each case, with a copy to:

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Attention: Eliot L. Relles, Esq.

Telephone: 212-756-2000

Telecopier: 212-593-5955

or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this Section 12.01. All such notices and other communications shall be effective, (i) if mailed (certified mail, postage prepaid and return receipt requested), when received or 3 days after deposited in the mails, whichever occurs first, (ii) if telecopied, when transmitted and confirmation received, or (iii) if delivered by hand, Federal Express or other reputable overnight courier, upon delivery, except that notices to any Agent or the L/C Issuer pursuant to ARTICLE II and ARTICLE III shall not be effective until received by such Agent or the L/C Issuer, as the case may be.

(b) Electronic Communications .

(i) Each Agent, Administrative Borrower and Administrative Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) in accordance with clause (b)(ii) below or otherwise pursuant to procedures approved by the Agents, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to ARTICLE II and ARTICLE III if such Lender or the L/C Issuer, as applicable, has notified the Agents that it is incapable of receiving notices under such Article by electronic communication.

(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

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Section 12.02 Amendments, Etc . (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (x) in the case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Agents and the Lenders or extending an existing Lien over additional property, by the Agents and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), (y) in the case of any other waiver or consent but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and (z) in the case of any other amendment but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall:

(i) increase any Commitment of any Lender, reduce the principal of, or interest on, the Loans or the Reimbursement Obligations payable to any Lender, reduce the amount of any fee payable for the account of any Lender, or postpone or extend any scheduled date fixed for any payment of principal of, or interest or fees on, the Loans or Letter of Credit Obligations payable to any Lender, in each case, without the written consent of such Lender;

(ii) [reserved];

(iii) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that is required for the Lenders or any of them to take any action hereunder without the written consent of each Lender;

(iv) amend the definition of “Required Lenders” or “Pro Rata Share” without the written consent of each Lender;

(v) release all or a substantial portion of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents), subordinate any Lien granted in favor of the Collateral Agent for the benefit of the Agents and the Lenders, or release any Borrower or any Guarantor, in each case, without the written consent of each Lender (except as otherwise provided in this Agreement and the other Loan Documents);

(vi) amend, modify or waive Section 2.01(b)(i), Section 2.01(c), Section 2.05(c), Section 4.02, Section 4.03, Section 5.02 (it being understood, however, that this clause (vi) shall not impact the effectiveness of any waiver of a Default or Event of Default, including for purposes of Section 5.02), Section 10.08, Section 12.07(b) or this Section 12.02 of this Agreement without the written consent of each Lender;

 

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(vii) amend the definition of “Bank Product Provider”, “Bank Product Obligations” (or any defined term used therein or any provision expressly relating to Bank Product Obligations), “Bank Product Reserve”, “Cash Collateralize” (or any provision hereof relating to the Cash Collateralization of Letter of Credit Obligations), “Excluded Hedge Liability” (or any defined term used therein or any provision expressly relating to Excluded Hedge Liabilities), “Letter of Credit Sublimit”, “Interest Rate Hedging Obligations” (or any provision expressly relating to Interest Rate Hedging Obligations), “Lender-Provided Hedge Agreement”, or “Permitted Discretion” (as used with respect to the Administrative Agent), in each case, without the written consent of the Required Revolving Loan Lenders, the Required Lenders; or

(viii) amend the definition of “Availability”, “Book Value”, “Borrowing Base” (or any defined term used therein), “Eligible Accounts Receivable”, “Eligible Domestic Accounts Receivable”, Eligible Foreign Accounts Receivable”, “Eligible Domestic In-Transit Inventory” (or any defined term used therein), “Eligible Foreign In-Transit Inventory” (or any defined term used therein), “Eligible Inventory”, “Eligible Special Inventory”, “Dilution”, “Dilution Reserves”, “Net Amount of Eligible Accounts Receivable”, “Permitted Special Inventory Amount” or “Reserves” (or any defined term for any particular reserve referenced therein)), in each case, without the written consent of the Required Revolving Loan Lenders and the Required Lenders.

Notwithstanding the foregoing, (A) no amendment, waiver or consent shall, unless in writing and signed by an Agent or the L/C Issuer, affect the rights or duties of such Agent or the L/C Issuer (but not in its capacity as a Lender) under this Agreement or the other Loan Documents, (B) any amendment, waiver or consent to any provision of this Agreement (including Sections 4.01 and 4.02) that permits any Loan Party, any Permitted Holder or any of their respective Affiliates to purchase Loans on a non-pro rata basis, become an eligible assignee pursuant to Section 12.07 and/or make offers to make optional prepayments on a non-pro rata basis shall require the prior written consent of the Required Lenders rather than the prior written consent of each Lender directly affected thereby and (C) the consent of the Borrowers shall not be required to change any order of priority set forth in Section 4.03. Notwithstanding anything to the contrary herein, no Defaulting Lender, Loan Party, Permitted Holder or any of their respective Affiliates that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents and any Loans held by such Person for purposes hereof shall be automatically deemed to be voted pro rata according to the Loans of all other Lenders in the aggregate (other than such Defaulting Lender, Loan Party, Permitted Holder or Affiliate).

(b) If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or any Lender affected thereby, such consent, authorization or agreement is provided by the Required Lenders and a Lender (the “ Holdout Lender ”) fails to give its consent, authorization, agreement, then the Collateral Agent may, or at the request of the Administrative Borrower, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders (each, a “ Replacement Lender ”), and the Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after

 

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the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 12.07(b). Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender shall remain obligated to make its Pro Rata Share of Loans.

Section 12.03 No Waiver; Remedies, Etc . No failure on the part of any Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agents and the Lenders under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any other Loan Document against such party or against any other Person.

Section 12.04 Expenses; Taxes; Attorneys’ Fees . The Borrowers will pay, not later than 15 days after receipt of a reasonably detailed invoice therefor, all reasonable and documented out-of-pocket costs and expenses incurred by or on behalf of each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender), regardless of whether the transactions contemplated hereby are consummated, including, without limitation, reasonable and documented out-of-pocket fees, costs, client charges and expenses of counsel for each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender, provided that the obligation to reimburse expenses of counsel shall be limited to one law firm for each Agent and, in the event of a conflict of interest, one additional law firm, together with one additional counsel in each applicable jurisdiction), accounting, due diligence, periodic field audits, physical counts, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, the rating of the Loans, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to: (a) the negotiation, preparation, execution, delivery, performance and administration of this Agreement and the other Loan Documents (including, without limitation, the preparation of any additional Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)), (b) any requested amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’ rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims against any Loan Party, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in, any court proceeding arising from or related to this Agreement or any other Loan

 

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Document, (f) the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral or other security, in connection with this Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking possession of or liquidation of, any Collateral or other security in connection with this Agreement or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any Collateral or other security in connection with this Agreement or any other Loan Document, (i) any attempt to collect from any Loan Party, (j) all liabilities and costs arising from or in connection with the past, present or future operations of any Loan Party involving any damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property, (k) any Environmental Liabilities and Costs incurred in connection with the investigation, removal, cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of any facility of any Loan Party, (l) any Environmental Liabilities and Costs incurred in connection with any Environmental Lien, (m) [intentionally deleted], or (n) the receipt by any Agent or any Lender of any advice from any accountants, auditors, appraisers, advisors or consultants with respect to any of the foregoing; provided , however , the foregoing to the contrary notwithstanding, that no Loan Party shall have any obligation to any Agent or any Lender under this Section 12.04 with respect to any Environmental Liabilities and Costs to the extent excluded from the obligations pursuant to Section 12.16(b) or with respect to any other obligations to the extent that such obligations (i) are caused by the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) arise from any dispute between or among any agent or any Lender, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among the Agents and Lenders and not involving the Loan Parties. Without limitation of the foregoing or any other provision of any Loan Document: (x) the Borrowers agree to pay all stamp, document, transfer, recording or filing taxes or fees and similar impositions now or hereafter determined by any Agent or any Lender to be payable in connection with this Agreement or any other Loan Document, and the Borrowers agree to save each Agent and each Lender harmless from and against any and all present or future claims, liabilities or losses with respect to or resulting from any omission to pay or delay in paying any such taxes, fees or impositions, (y) the Borrowers agree to pay all broker fees that may become due in connection with the transactions contemplated by this Agreement and the other Loan Documents, and (z) if the Borrowers fail to perform any covenant or agreement contained herein or in any other Loan Document, any Agent may itself perform or cause performance of such covenant or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed not later than 15 days after receipt of a reasonably detailed invoice therefor. The obligations of the Borrowers under this Section 12.04 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

Section 12.05 Right of Set-off . Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any and all other Indebtedness at any time owing by such Agent or such Lender to or

 

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for the credit or the account of any Loan Party against any and all Obligations of the Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made any demand hereunder or thereunder and although such Obligations may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 4.03 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agents and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Agent and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies (including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents of law or otherwise.

Section 12.06 Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 12.07 Assignments and Participations .

(a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided , however , that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.

(b) Each Lender may (x) with the written consent of the Collateral Agent assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan B Commitment and any Term Loan made by it and (y) with the written consent of each Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it; provided , however , that (i) such assignment shall require the prior consent of the Administrative Borrower (which consent shall not (1) be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default or (2) required in connection with an assignment to Fortress Credit Corp. or any of its Affiliates or Related Funds), (ii) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess

 

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thereof), (iii) except as provided in the last sentence of this Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Borrower (and the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and (iv) no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender, a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent, the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Collateral Agent, the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and 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). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (a “ Related Party Assignment ”); provided , however , that (I) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(d) below.

(c) By executing and delivering an Assignment and Acceptance, the assigning Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the 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 any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished

 

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pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.

(d) The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “ Register ”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “ Registered Loans ”) and Letter of Credit Obligations owing to each Lender from time to time. Subject to the last sentence of this Section 12.07(d), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (the “ Related Party Register ”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent, the Administrative Borrower or the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.

 

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(f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.

(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “ Participant Register ”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).

(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided , that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of 0, Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that, at the time such participant is claiming benefits pursuant to Section 2.09, such participant shall comply all obligations under Section 2.09 as if it was a Lender thereunder.

 

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(j) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “ Securitization ”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.

Section 12.08 Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or electronic mail also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.

Section 12.09 GOVERNING LAW . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE . (a) EACH OF THE LOAN PARTIES HERETO AGREE THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.

(b) EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.01. SERVICE MAY BE MADE ON THE LOAN PARTIES, IN ANY SUCH ACTION OR PROCEEDING, BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWERS AT THEIR RESPECTIVE ADDRESSES FOR NOTICES AS SET FORTH IN SECTION 12.01,

 

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SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.

(c) EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

Section 12.11 WAIVER OF JURY TRIAL, ETC . EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.

Section 12.12 [ Reserved ].

Section 12.13 No Party Deemed Drafter . Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter of this Agreement.

Section 12.14 Reinstatement; Certain Payments . If any claim is ever made upon any Agent, any Lender or the L/C Issuer for repayment or recovery of any amount or amounts received by such Agent, such Lender or the L/C Issuer in payment or on account of any of the Obligations, such Agent, such Lender or the L/C Issuer shall give prompt notice of such claim to each other Agent and Lender and the Administrative Borrower, and if such Agent, such

 

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Lender or the L/C Issuer repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such Agent, such Lender or the L/C Issuer or any of its property, or (ii) any good faith settlement or compromise of any such claim effected by such Agent, such Lender or the L/C Issuer with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree, order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable to such Agent, such Lender or the L/C Issuer hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Agent, such Lender or the L/C Issuer.

Section 12.15 [ Intentionally Omitted ].

Section 12.16 Indemnification; Limitation of Liability for Certain Damages .

(a) General Indemnity for Obligations . In addition to each Loan Party’s other Obligations under this Agreement, each Loan Party agrees to, jointly and severally, defend, protect, indemnify and hold harmless each Agent and each Lender and each of their Affiliates and all of their respective officers, directors, employees, attorneys, consultants and agents (collectively called the “ Indemnitees ”) from and against any and all losses, damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses, provided that the obligation to reimburse expenses of counsel shall be limited as provided in Section 12.04 incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following : (i) the negotiation, preparation, execution or performance or enforcement of this Agreement, any other Loan Document or of any other document executed in connection with the transactions contemplated by this Agreement, (ii) transactions contemplated by this Agreement, (iii) any Agent’s or any Lender’s furnishing of funds to the Borrowers for the account of the Borrowers under this Agreement or the other Loan Documents, including, without limitation, the management of any such Loans, (iv) any matter relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (collectively, the “ Indemnified Matters ”); provided , however , that the Loan Parties shall not have any obligation to any Indemnitee under this subsection (a) for any Indemnified Matter (i) caused by the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) to the extent arising from any dispute between or among any Indemnitees, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among Indemnities not involving the Loan Parties .

 

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(b) Environmental Indemnity for Obligations . Each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including without limitation, reasonable legal fees and expenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or relating to any Release of Hazardous Materials by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which (x) is caused by the gross negligence, bad faith, or willful misconduct of such Indemnitee, (y) arose from Hazardous Materials brought on to any real property after any Indemnitee has taken title to or possession of such property, whether by foreclosure, deed-in-lieu thereof or otherwise, as determined by a final judgment of a court of competent jurisdiction, or (z) is attributable solely to acts of any of the Agents.

(c) The indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees, respectively are chargeable against the Loan Account. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.16 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. The indemnities set forth in this Section 12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents. To the extent permitted by applicable law, no Loan Party 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, any other Loan Document, any other agreement or instrument contemplated hereby or thereby, any Loan or the use of the proceeds thereof.

(d) The indemnities and waivers set forth in this Section 12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

Section 12.17 Administrative Borrowers . Each Borrower hereby irrevocably appoints Funko as the agent and attorney-in-fact for the Borrowers (the “ Administrative Borrower ”), which appointment shall remain in full force and effect unless and until the Agents shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. It is understood that the handling of the Loan Account and Collateral of the Borrowers, in a combined fashion, as more fully set forth herein and subject to the limitations set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers

 

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of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the Lenders shall incur liability to the Borrowers as a result hereof. Each of the Borrowers expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To induce the Agents and the Lenders to do so, and in consideration thereof, each of the Borrowers, hereby jointly and severally agrees to indemnify the Indemnitees and hold the Indemnitees harmless against any and all liability, expense, loss or claim of damage or injury, made against such Indemnitee by any of the Borrowers or by any third party whosoever, arising from or incurred by reason of (a) the handling of the Loan Account and Collateral of the Borrowers as herein provided, (b) the Agents and the Lenders relying on any instructions of the Administrative Borrower or the Administrative Borrowers, or (c) any other action taken by any Agent or any Lender hereunder or under the other Loan Documents.

Section 12.18 Records . The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, including, without limitation, the Closing fees payable under the Fee Letter , the Loan Servicing Fee, Unused Line Fee, the Letter of Credit Fee and the Applicable Prepayment Premium, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding absent manifest error.

Section 12.19 Binding Effect . This Agreement shall become effective when it shall have been executed by each Loan Party, each Agent and each Lender and when the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived in writing by the Agents, and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall be governed by Section 12.07 hereof.

Section 12.20 Interest . It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such

 

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Lender, as applicable, to the Borrowers); and (ii) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such Lender to the Borrowers). All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until Payment in Full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 12.20 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 12.20.

For purposes of this Section 12.20 the term “applicable law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrowers, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.

The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration.

Section 12.21 Confidentiality . Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) to keep confidential any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the other Loan Documents (and which at the time is not, and does not thereafter become, publicly available or available to such Person from another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, counsel, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information

 

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and instructed to keep such information confidential in accordance with this Section 12.21); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant) so long as such assignee or participant (or prospective assignee or participant) first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.21; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority; (v) to examiners, auditors or accountants; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (viii) to its lenders or financing providers; (ix) in connection with public filings, or (x) with the consent of the Administrative Borrower.

Section 12.22 Public Disclosure . Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue any press release or other public disclosure using the name of an Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate will consult with such Agent or such Lender before issuing such press release or other public disclosure). Each Agent and each Lender agrees that neither it nor any of its Affiliates will now or in the future advertise the closing of the transactions contemplated by this Agreement, or otherwise make appropriate announcements of the financial arrangements entered into among the parties hereto, including, without limitation, on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation without the prior written consent of the Administrative Borrower, except to the extent that such Agent or Lender is required to do so under applicable law (in which event, such Agent or Lender or such Affiliate will consult with the Administrative Borrower before taking such action).

Section 12.23 Integration . This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.

Section 12.24 USA PATRIOT Act . Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the entities composing the Borrowers, which information includes the name and address of each such entity and other information that will allow such Lender to identify the entities composing the Borrowers in accordance with the USA PATRIOT Act. Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments and documents as any Lender may reasonably require from time to time in order to enable such Lender to comply with the USA PATRIOT Act.

 

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Section 12.25 Keepwell . Each Loan Party, if it is a Qualified ECP Loan Party, then jointly and severally, together with each other Qualified ECP Loan Party, hereby absolutely unconditionally and irrevocably (a) guarantees the prompt payment and performance of all Swap Obligations owing by each Non-Qualifying Party (it being understood and agreed that this guarantee is a guaranty of payment and not of collection), and (b) undertakes to provide such funds or other support as may be needed from time to time by any Non-Qualifying Party to honor all of such Non-Qualifying Party’s obligations under this Agreement or any other Loan Document in respect of Swap Obligations (provided, however, that each Qualified ECP Loan Party shall only be liable under this Section 12.25 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.25, or otherwise under this Agreement or any other Loan Document, voidable under applicable law, including applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Loan Party under this Section 12.25 shall remain in full force and effect until payment in full of the Obligations and termination of this Agreement and the other Loan Documents. Each Qualified ECP Loan Party intends that this Section 12.25 constitute, and this Section 12.25 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of each other Borrower and Guarantor for all purposes of Section 1a(18(A)(v)(II) of the CEA .

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS :

FUNKO ACQUISITION HOLDINGS, L.L.C.

By:  

 

  Name:
  Title:

FUNKO HOLDINGS LLC

By:  

 

 

Name:

  Title:

FUNKO, LLC

By:  

 

  Name:
  Title:


COLLATERAL AGENT:

CERBERUS BUSINESS FINANCE, LLC

By:  

 

  Name:
  Title:


ADMINISTRATIVE AGENT AND LENDER :

PNC BANK, NATIONAL ASSOCIATION

By:

   
 

Name:

 

Title:


LENDERS :

CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.

By: Cerberus NJ Credit Opportunities GP, LLC,

  its General Partner
By:  

 

  Name:
  Title:

CERBERUS ASRS HOLDINGS LLC

By:  

 

  Name:
  Title:

CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.

By: Cerberus ICQ Levered Opportunities GP, LLC,

  its General Partner
By:  

 

  Name:
  Title:

CERBERUS KRS LEVERED LOAN OPPORTUNITIES FUND, L.P.

By   : Cerberus KRS Levered Opportunities GP, LLC,
  its General Partner
By:  

 

  Name:
  Title:

 

- i -


CERBERUS PSERS LEVERED LOAN OPPORTUNITIES FUND, L.P.

By:   Cerberus PSERS Levered Opportunities GP, LLC, its General Partner
By:   

 

  Name:
  Title:

 

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SCHEDULE 1.01(A)

LENDERS AND LENDERS’ COMMITMENTS

 

Lender

   Revolving Loan
Commitment
     Term Loan A
Initial Term Loan Amount as
of the Amendment No. 1
Effective Date

Amendment No.
3 Effective Date
     First
Amendment
Term Loan
B

Commitment
     Total  

PNC Bank, National Association

   $

 

50,000,000.00

80,000,000.00

 

 

   $ 0 —        $ 0 —        $ 50,000,000.00 80, 000,000.00  

Cerberus ASRS Funding LLC

   $ 0 —        $ 51,886,068.22 49,543,413.58      $ 0 —        $ 51,886,068.22 49, 543,413.58  

Cerberus AUS Levered Holdings II LP

   $ 0 —        $ 5,099,026.01 7,642,142.55      $ 0 —        $ 5,099,026.01 7,64 2,142.55  

Cerberus AUS FSBA Levered II LP LLC

   $ 0 —        $ 2,694,272.09 3,232,594.04      $ 0 —        $ 2,694,272.09 3,23 2,594.04  

Cerberus ICQ Levered LLC

   $ 0 —        $ 9,322,984.10 10,593,381.71      $ 0 —        $ 9,322,984.10 10,5 93,381.71  

Cerberus KRS Levered LLC

   $ 0 —        $ 5,150,466.45 5,780,306.45      $ 0 —        $ 5,150,466.45 5, 78 0,306.45  

Cerberus Loan Funding XV L.P.

   $ 0 —        $ 7,527,259.81 12,208,525.04      $ 0 —        $ 7,527,259.81 12,2 08,525.04  

Cerberus Loan Funding XVI LP

   $ —        $ 10,397,176.04      $ —        $ 10,397,176.04  

Cerberus Loan Funding XVII, Ltd.

   $ —        $ 7,362,905.68      $ —        $ 7,362,905.68  

Cerberus N-1 Funding LLC

   $ 0 —        $ 17,018,550.41 18,469,780.73      $ 0 —        $ 17,018,550.41 18, 469,780.73  

 

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Cerberus Onshore Levered III LLC

   $      $ 7,994,359.75      $ —        $ 7,994,359.75  

Cerberus PSERS Levered LLC

   $
 
0 —  
 
 
   $ 22,195,192.50 14,742,560.95      $ 0         $ 22,195,192.50 14,742,560.95  

Cerberus SWC Levered , L.P. LP

   $
 
0 —  
 
 
   $ 11,560,466.13 11,336,244.19      $ 0         $ 11,560,466.13 11,336,244.19  

Cerberus ASRS Holdings LLC 

   $ —        $ —        $ 10,480,695.09      $ 10,480,695.09  

Cerberus FSBA Holdings LLC

   $ —        $ —        $ 4,367,399.99      $ 4,367,399.99  

Cerberus ICQ Levered Loan Opportunities Fund III , L.P.

   $
 
0 —  
 
 
   $ 0 —        $ 9,158,902.43 5,301,932.79      $ 9,158,902.43 5,301,932.79  

Cerberus NJ Credit KRS Levered Loan Opportunities Fund, L.P.

   $
 
0 —  
 
 
   $ 0 —        $ 2,040,800.06 776,097.23      $ 2,040,800.06 776,097.23  

Cerberus ASRS Holdings LLC

   $ 0      $ 0      $ 6,904,511.10      $ 6,904,511.10  

Cerberus ICQ Levered Loan Opportunities Fund III , L.P.

   $
 
0 —  
 
 
   $ 0 —        $ 7,193,073.07 9,060,382.94      $ 7,193,073.07 9, 060,382.94  

Cerberus KRS Levered Loan NJ Credit Opportunities Fund, L.P.

   $
 
0 —  
 
 
   $ 0 —        $ 836,037.34 1,886,550.89      $ 836,037.34 1,886,550.89  

Cerberus PSERS Levered Loan Opportunities Fund, L.P.

   $
 
0 —  
 
 
   $ 0 —        $ 3,866,676.00 4, 765,255.40      $ 3,866,676.00 4, 765,255.40  

 

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Fortress Credit Opportunities III CLO LP

   $ 0      $

 

10,745,877.29

15,440,476.87

 

 

   $ 5,000,000.00 6,361,685.67      $ 15,745,877.29 21,802,162.54  

Fortress Credit Opportunities V CLO Limited

   $ 0 —        $ 9,811,428.58 18,446,570.02      $ 9,000,000.00 2,000,000.00      $

 

18,811,428.58

20,446,570.02

 

 

Fortress Credit Opportunities VII CLO Limited

   $ 0 —        $ 9,811,428.58 15,504,756.74      $ 6,000,000.00 5,000,000.00      $

 

15,811,428.58

20,504,756.74

 

 

Fortress Credit Opportunities VI CLO Limited

   $ 0 —        $ 4,952,408.43 4,856,353.60      $ 0         $ 4,952,408.43 4,856,353.60  

Fortress Credit Funding Fund V LP

   $ 0 —        $ 3,924,571.40 3,848,452.06      $ 0         $ 3,924,571.40 3,848,452.06  

Totals Total

   $ 50,000,000.00 80,000,000.00      $ 171,700,000.00 217,400,000.00      $ 50,000,000 50,000,000.00      $ 271,700,000.00 267,400,000.00  

 

- iii -


SCHEDULE 1.01(B)

SECURITY DOCUMENTS

1. Security Agreement

2. Trademark Security Agreement

 

-i-

Exhibit 10.9

Execution Version

AMENDMENT NO. 4 TO FINANCING AGREEMENT

AMENDMENT NO. 4 TO FINANCING AGREEMENT (this “ Amendment ”), dated as of June 26, 2017, to the Financing Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ,” and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement (as defined in the Financing Agreement) and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined in the Financing Agreement), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

WHEREAS, the Borrowers have requested that the Lenders make certain changes to the Financing Agreement and the Lenders are willing to make such modifications, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement, as amended by this Amendment.

2. Amendments .

(a) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by adding the following definitions in the appropriate alphabetical order:

““ Acon Investors ” means ACON Funko Investors, L.L.C., a Delaware limited liability company and each other Person that becomes a lender of Acon Subordinated Indebtedness pursuant to an Acon Subordinated Note, and executes a joinder to the Acon Notes Subordination Agreement.”

““ Acon Subordinated Indebtedness ” shall mean the debt obligations of the Ultimate Parent to Acon Investors under the Acon Subordinated Notes, in an aggregate principal amount not to exceed $20,000,000 (plus any interest paid in kind in accordance with the Acon Subordinated Notes).”

““ Acon Subordinated Indebtedness Permitted Payments ” means (a) regularly scheduled payments in kind (and not in cash) of interest on the Acon Subordinated Indebtedness in accordance with the Acon Subordinated Notes, (b) after the fifth anniversary of an Acon


Subordinated Note, AHYDO payments on the Acon Subordinated Indebtedness pursuant to Section 6 of such Acon Subordinated Note, (c) cash payments of principal (including capitalized interest and accrued interest on such principal amount subject to payment) after a Qualified Initial Public Offering, using the proceeds of such Qualified Initial Public Offering, and (d) voluntary cash prepayments of principal (including capitalized interest and accrued interest on such principal amount subject to payment) and cash payments of regularly scheduled interest on the Acon Subordinated Indebtedness; provided , that such payments shall only be permitted to be paid if: (i) no Default or Event of Default shall have occurred and be continuing, or would result from such prepayment, (ii) Availability would not be less than $15,000,000 immediately after giving effect to such payment and (iii) the Loan Parties shall be in compliance on a pro forma basis with the covenants set forth in Section 7.03 hereof, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered (or are required to have been delivered) under Section 7.01(a)(i) hereof.”

““ Acon Subordinated Notes ” means each Subordinated Promissory Note by Ultimate Parent in favor of an Acon Investor, each in substantially the same form as that certain Subordinated Promissory Note, dated as of June 26, 2017, by Ultimate Parent in favor of ACON Funko Investors, L.L.C., a Delaware limited liability company, as each of the foregoing may be amended, restated, supplemented or otherwise modified from time to time in compliance with the terms of the Subordination Agreement.”

““ Acon Notes Subordination Agreement ” means that certain Subordination Agreement, dated as of June 26, 2017, by and between Collateral Agent and each Acon Investor, as acknowledged by the Borrowers, as the same may be amended, restated, supplemented or otherwise modified from time to time in compliance with the terms thereof.”

““ Amendment No. 4 ” means Amendment No. 4 to Financing Agreement, dated as of June 26, 2017, by and among the Agents, the Lenders and the Loan Parties.”

(b) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating clause (e)(viii) of the definition of “Excess Cash Flow” in its entirety to read as follows:

“(viii) cash payments during such period that were paid in respect of Permitted Acquisitions, the Underground Toys Earnout, the Funko Earnout, the Funko Earnout Preferred Equity, the Acon Subordinated Indebtedness or Permitted Investments pursuant to clause (p) of the definition thereof, in each case, to the extent not financed through the incurrence of Indebtedness (other than Indebtedness constituting a Revolver Credit Extension) or through an Equity Issuance.”

(c) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating clauses (a)(ii)(x) and (a)(ii)(y) of the definition of “Fixed Charge Coverage Ratio” in their entirety to read as follows:

“(x) unfinanced Capital Expenditures made by such Person and its Subsidiaries during such period (excluding expenditures representing the purchase price for any Permitted Acquisition or Investment permitted pursuant to clause (p) of the definition thereof and excluding unfinanced Capital Expenditures related to the headquarters building (not to exceed $10,000,000 in the aggregate for all periods in which such Capital Expenditures are made) of which $1,698,000 is attributed to the Fiscal Quarter ended December 31,

 

2


2016, $4,855,000 is attributed to the Fiscal Quarter ended March 31, 2017 and, as of May 31, 2017 (with the amount being increased for such Capital Expenditures made in June, 2017), $1,767,000 is attributed to the Fiscal Quarter ending June 30, 2017), plus (y) cash income taxes paid by such Person and its Subsidiaries during such period (with such cash income taxes paid being deemed to be $10,078,000 for the Fiscal Quarter ended June 30, 2016, $15,318,000 for the Fiscal Quarter ended September 30, 2016 and $12,900,000 for the Fiscal Quarter ended March 31, 2017), plus”

(d) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating clauses (b)(i) and (b)(ii) of the definition of “Fixed Charge Coverage Ratio” in their entirety to read as follows:

“(i) all scheduled installments of principal of Indebtedness (excluding any principal payments made in relation to the Acon Subordinated Indebtedness, the Funko Earnout, the Underground Toys Earnout or any Funko Earnout Preferred Equity) of such Person and its Subsidiaries paid during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Cash Interest Expense (excluding any such interest paid or payable in relation to the Acon Subordinated Indebtedness) of such Person and its Subsidiaries for such period, plus”

(e) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating the definition of “Loan Document” in its entirety to read as follows:

““ Loan Document ” means this Agreement, the Security Agreement, any other Security Documents, any Guaranty, any Note, the Intercompany Subordination Agreement, the Acon Notes Subordination Agreement, any Joinder Agreement, the Flow of Funds Agreement, any Letter of Credit Application, any Mortgage, the Fee Letter, the Collateral Assignment, any Bank Product Agreement, and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan, any Letter of Credit Obligation or any other Obligation; provided, however, that for purposes of Section 9.1 hereof, no Interest Rate Hedging Agreement or other Bank Product Agreement shall constitute a Loan Document.”

(f) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating clause (c) of the definition of “Permitted Funko Earnout Payments” in its entirety to read as follows:

“(c) any additional amounts in respect of the Funko 2015 Earnout or the Funko 2016 Earnout that are paid (i) through the issuance of Funko Earnout Preferred Equity, (ii) with the cash proceeds of new equity issued by the Ultimate Parent, or (iii) with the proceeds of the Acon Subordinated Indebtedness.”

(g) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating clause (i) of the definition of “Permitted Indebtedness” in its entirety to read as follows:

“(i) Subordinated Indebtedness (other than the Acon Subordinated Indebtedness) in an aggregate amount not exceeding $5,000,000 at any time outstanding and the Acon Subordinated Indebtedness;”

 

3


(h) Section 1.01 of the Financing Agreement (Definitions) is hereby amended by amending and restating the definition of “Subordinated Indebtedness” in its entirety to read as follows:

““ Subordinated Indebtedness ” means (a) the Acon Subordinated Indebtedness, and (b) any other Indebtedness of any Loan Party the terms of which are reasonably satisfactory to the Agents and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (i) by the execution and delivery of a subordination agreement, in form and substance reasonably satisfactory to the Agents, or (ii) otherwise on terms and conditions (including, without limitation, subordination provisions, payment terms, interest rates, covenants, remedies, defaults and other material terms) reasonably satisfactory to the Agents; it being understood that the following terms in respect of such Indebtedness will be satisfactory to the Agents: (1) no cash principal payments prior to the maturity thereof and payment of cash interest permitted at commercially reasonable rate in absence of continuing Event of Default, (2) matures at least 180 days after the Final Maturity Date, (3) subject to customary limited exceptions, indefinite standstill period on the exercise of remedies (whether or not of a type available to unsecured creditors) until the Obligations are Paid in Full, and (4) unsecured.”

(i) Section 7.01(n) of the Financing Agreement (Subordination) is hereby amended and restated in its entirety to read as follows:

“(n) Subordination . Cause all Indebtedness and other obligations now or hereafter owed by it to any of its Affiliates (other than, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout and the Funko Earnout Preferred Equity), to be subordinated in right of payment and security to the Indebtedness and other Obligations owing to the Agents and the Lenders in accordance with the Intercompany Subordination Agreement, the Acon Notes Subordination Agreement or such other applicable subordination agreement in form and substance reasonably satisfactory to the Agents.”

(j) Section 7.02(h) of the Financing Agreement (Restricted Payments) is hereby amended by amending and restating clause (F) after the first proviso thereof in its entirety to read as follows:

“(F) the Loan Parties may make dividends, distributions or other payments for the purpose of allowing the Ultimate Parent to make payments or redemptions in respect of all or a portion of the Funko Earnout Preferred Equity (and Ultimate Parent may make such payment or redemption); provided , that any amounts funded by the Parent to the Ultimate Parent for such purpose may not be paid in cash if, at the time of the making of any such payment or after giving effect to the making of any such payment, (i) there exists an Event of Default or (ii) Availability is less than $15,000,000 (in which case the payment of such amount in cash shall be permitted at such time as the conditions described in clauses (i) and (ii) are no longer continuing),”

(k) Section 7.02(j) of the Financing Agreement (Transactions with Affiliates) is hereby amended by deleting “and” before clause (iv) thereof and replacing it with “,”, and adding the following language to the end of such section:

“and (v) transactions contemplated by the Acon Subordinated Note”

 

4


(l) Section 7.02(m)(ii)(B) of the Financing Agreement (Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.) is hereby amended and restated in its entirety to read as follows:

“(B) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of the Acon Subordinated Indebtedness in violation of the subordination provisions thereof or the Acon Notes Subordination Agreement (it being understood and agreed that Ultimate Parent may make Acon Subordinated Indebtedness Permitted Payments in accordance with the terms of the Acon Notes Subordination Agreement), or any other Subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement with respect thereto;”

3. Conditions Precedent to Effectiveness of this Amendment . This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “ Amendment Effective Date ”):

(a) Amendment . Each Agent shall have received this Amendment fully executed by the Loan Parties and the Lenders.

(b) Proceedings; Receipt of Documents . All proceedings in connection with this Amendment, and all documents incidental hereto and thereto, shall be satisfactory to the Lenders, and each Agent shall have received all such information or certified or other copies of such documents as any Lender may reasonably request.

(c) Representations and Warranties; No Default . (i) All representations and warranties contained in the Financing Agreement, in Section 4 hereof and in the other Loan Documents in effect on the Amendment Effective Date shall be true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or would result from this Amendment or the other Loan Documents becoming effective in accordance with its or their respective terms.

(d) Sponsor Investment . The Agents shall have received reasonably satisfactory evidence that the Permitted Holders made a cash equity contribution to Ultimate Parent of at least $5,000,000.

4. Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default . The representations and warranties herein, in Article VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an

 

5


earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment and each other Loan Document to which it is or will be a party, and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(d) Enforceability of Loan Documents . This Amendment, the Financing Agreement as amended by this Amendment, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by principles of equity.

(e) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(f) Continued Effectiveness of Financing Agreement . Each Loan Party hereby (a) confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreement, and each reference in any other Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement, shall mean and be a reference to the Financing Agreement as amended by this Amendment, and (b) confirms and agrees that to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent or any Lender, or to grant to the Collateral Agent or any Lender a Lien on any collateral as security for the Obligations of such Loan Party from time to time existing in respect of the Financing Agreement and the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in all respects.

 

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(g) Reaffirmation . Each Loan Party hereby reaffirms its obligations under each Loan Document to which it is a party. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document, to Collateral Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

5. No Other Waivers . Except as expressly provided in this Amendment, all of the terms and conditions of the Financing Agreement and the other Loan Documents remain in full force and effect. Nothing contained in this Amendment shall (a) be construed to imply a willingness on the part of the Agents or the Lenders to grant any similar or other future waiver or amendment of any of the terms and conditions of the Financing Agreement or the other Loan Documents or (b) in any way prejudice, impair or effect any rights or remedies of the Agents or the Lenders under the Financing Agreement or the other Loan Documents.

6. Miscellaneous .

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or electronic mail transmission shall be effective as delivery of a manually executed counterpart of this Amendment, but upon the request of an Agent the parties shall deliver original executed copies of the Amendment.

(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York .

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement, as and when provided in Section 9.01 of the Financing Agreement, if (i) any representation or warranty made by a Loan Party under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) a Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.

(e) Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing)

 

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(collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “ Released Parties ”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.

(f) This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(g) The Borrowers agree to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Lenders in connection with the preparation, execution and delivery of this Amendment and the other related agreements, instruments and documents.

(h) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE REVISIONS CONTEMPLATED HEREIN.

[Remainder of Page Left Intentionally Blank]

 

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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

 

BORROWERS :
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:   /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary
FUNKO HOLDINGS LLC
By:   /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary
FUNKO, LLC
By:   /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


COLLATERAL AGENT :
CERBERUS BUSINESS FINANCE, LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Chief Executive Officer

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


ADMINISTRATIVE AGENT AND LENDER :
PNC BANK, NATIONAL ASSOCIATION
By:   /s/ Patrick Cornell
  Name:   Patrick Cornell
  Title:   SVP

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


LENDERS :
CERBERUS ASRS FUNDING LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS AUS LEVERED HOLDINGS LP
By: CAL I GP Holdings LLC,
its General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS AUS LEVERED II LP
By: CAL II GP LLC,
its General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS FSBA LEVERED LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS ICQ LEVERED II LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS ICQ LEVERED LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


CERBERUS ICQ OFFSHORE LEVERED LP
By: Cerberus ICQ Offshore GP LLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.
By: Cerberus ICQ Levered Opportunities GP, LLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS KRS LEVERED LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS LOAN FUNDING XIX L.P.
By: Cerberus LFGP XIX, LLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS LOAN FUNDING XV L.P.
By: Cerberus ICQ GP, LLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS LOAN FUNDING XVI LP
By: Cerberus PSERS GP, LLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


CERBERUS LOAN FUNDING XVII LTD.
By: Cerberus ASRS Holdings LLC
Its: Attorney-in-Fact
By:   /s/ Daniel Wolf
  Duly Authorized Signatory
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS LOAN FUNDING XVII L.P.
By: Cerberus LFGVP XVIII, LLLC
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Senior Managing Director
CERBERUS N-1 FUNDING LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS OFFSHORE LEVERED III LP
By: COL III GP Inc.
Its: General Partner
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS PSERS LEVERED LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS REDWOOD LEVERED A LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS REDWOOD LEVERED B LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President
CERBERUS SWC LEVERED II LLC
By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Vice President

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT


FORTRESS CREDIT OPPORTUNITIES III CLO LP
By: FCO III CLO GP LLC, its General Partner
By:   /s/ Marc K. Furstein
  Name:   Marc K. Furtstein
  Title:   Chief Operating Officer
FORTRESS CREDIT OPPORTUNITIES V CLO LIMITED
By: FCO V CLO CM LLC, its Collateral Manager
By:   /s/ Marc K. Furstein
  Name:   Marc K. Furtstein
  Title:   Chief Operating Officer
FORTRESS CREDIT OPPORTUNITIES VII CLO LIMITED
By: FCO VII CLO CM LLC, its Collateral Manager
By:   /s/ Marc K. Furstein
  Name:   Marc K. Furtstein
  Title:   Chief Operating Officer
FORTRESS CREDIT OPPORTUNITIES VI CLO LIMITED
By: FCO VI CLO CM LLC, its Collateral Manager
By:   /s/ Marc K. Furstein
  Name:   Marc K. Furtstein
  Title:   Chief Operating Officer

 

AMENDMENT NO. 4 TO

FINANCING AGREEMENT

Exhibit 10.10

EXECUTION VERSION

AMENDMENT NO. 5 TO FINANCING AGREEMENT

AMENDMENT NO. 5 TO FINANCING AGREEMENT (this “ Amendment ”), dated as of June 28, 2017, to the Financing Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Financing Agreement ”), by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement), Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or ” Funko Holdings ”), Funko, LLC, a Washington limited liability company (“ Funko ”) and Loungefly, LLC, a California limited liability company (“ Loungefly ”), and Loungefly, together with the Ultimate Parent, the Parent, Funko and each other Person that executes a Joinder Agreement (as defined in the Financing Agreement) and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined in the Financing Agreement), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the ” Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ” Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ” Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

WHEREAS, the Borrowers have requested that the Lenders make certain changes to the Financing Agreement and the Lenders are willing to make such modifications, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement, as amended by this Amendment.

2. Amendments . The Financing Agreement is hereby amended (a) to delete the red or green stricken text (indicated textually in the same manner as the following examples: and stricken text ) and (b) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked copy of the Financing Agreement attached hereto as Exhibit A hereto and made a part hereof for all purposes.

3. Conditions Precedent to Effectiveness of this Amendment . This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “ Amendment Effective Date ”):

(a) Amendment . Each Agent shall have received this Amendment fully executed by the Loan Parties and the Lenders.

(b) Proceedings; Receipt of Documents . All proceedings in connection with this Amendment, and all documents incidental hereto and thereto, shall be satisfactory to the Lenders, and each Agent shall have received all such information or certified or other copies of such documents as any Lender may reasonably request.

 


(c) Fees . The Administrative Agent shall have received the fees due and payable under the Fee Letter by wire transfer in immediately available funds.

(d) Notice of Borrowing . The Administrative Agent shall have received an executed Notice of Borrowing in connection with the Term Loan A-1.

(e) Representations and Warranties; No Default . (i) All representations and warranties contained in the Financing Agreement, in Section 4 hereof and in the other Loan Documents in effect on the Amendment Effective Date shall be true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or would result from this Amendment, the Loungefly Acquisition or the other Loan Documents becoming effective in accordance with its or their respective terms and the Loungefly Acquisition is consensual.

(f) Legality . The making of the Term Loan A-1 shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C Issuer.

(g) Opinion . The Agents shall have received an opinions of (i) Hogan Lovells, counsel to the Loan Parties, (ii) Richards Layton & Finger, Delaware counsel to the Loan Parties, and (iii) Karr Tuttle Campbell, Washington counsel to the Loan Parties, in each case, as to such customary matters as the Agents may reasonably request.

(h) Solvency Certificate . The Collateral Agent shall have received a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent.

(i) Good Standings . The Agents shall have received a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Amendment Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions.

(j) Governing Documents . The Agents shall have received a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Amendment Effective Date by an Authorized Officer of such Loan Party; provided , that, if such Governing Documents have not been amended, supplemented or otherwise modified since the Effective Date, such certificate may include a certification by such Authorized Officer that no such changes have been made to such Governing Documents, in lieu attaching copies of such documents.

(k) Incumbency . The Agents shall have received a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign this Amendment and each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives.

 

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(l) Resolutions . The Agents shall have received a copy of the resolutions of each Loan Party, certified as of the Amendment Effective Date by an Authorized Officer thereof, approving of the Loungefly Acquisition and authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith.

(m) Closing Certificate . The Agents shall have received certificates of an Authorized Officer of each Loan Party, certifying as to the matters set forth in subclauses (e), (p) and (q).

(n) Expenses . The Agents shall have received payment of all fees and expenses which are due and payable as of the Amendment Effective Date, pursuant to Section 12.04 of the Financing Agreement.

(o) Flow of Funds Agreement . The Agents shall have received a Flow of Funds Agreement with respect to the Term Loan A-1, duly executed by the Borrowers, the Lenders and the Agents.

(p) Section 7.03 Compliance . The Agents shall have received, not later than three (3) Business Days prior to the anticipated closing date of the Loungefly Acquisition, written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such Loungefly Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents) created by adding the historical combined financial statements of the Ultimate Parent and its Subsidiaries (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the Loungefly Acquisition, the Ultimate Parent and its Subsidiaries (i) would have been in compliance with the financial covenants in Section 7.03 of Financing Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are projected to be in compliance with the financial covenants in Section 7.03 of the Financing Agreement for the twelve month period ended one year after the proposed date of consummation of such Loungefly Acquisition.

(q) Loungefly Acquisition . The following shall be true and correct:

(i) Loungefly is engaged in a business principally located in the United States and permitted to be engaged in by the Loan Parties pursuant to Section 7.02(d); and

(ii) After giving pro forma effect to the Loungefly Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Borrowers shall have (A) Availability on the date of the Loungefly Acquisition after giving effect thereto of at least $10,000,000; and (B) projected pro forma Availability for the twelve month period after the date of the Loungefly Acquisition of at least $10,000,000.

 

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(r) Second Amended and Restated Revolving Loan Note . The Administrative Agent shall have received the Second Amended and Restated Revolving Loan Note fully executed by the Loan Parties and the Lenders.

4. Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows:

(a) Representations and Warranties; No Event of Default . The representations and warranties herein, in Article  VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered by or on behalf of the Loan Parties to any Agent or any Lender pursuant to the Financing Agreement or any other Loan Document on or immediately prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), and no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.

(b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, and to execute and deliver this Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and be in good standing could not reasonably be expected to have a Material Adverse Effect.

(c) Authorization, Etc. The execution and delivery by each Loan Party of this Amendment and each other Loan Document to which it is or will be a party, and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene any Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(d) Enforceability of Loan Documents . This Amendment, the Financing Agreement as amended by this Amendment, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by principles of equity.

 

4


(e) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

(f) Continued Effectiveness of Financing Agreement . Each Loan Party hereby (a) confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreement, and each reference in any other Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement, shall mean and be a reference to the Financing Agreement as amended by this Amendment, and (b) confirms and agrees that to the extent that any such Loan Document purports to assign or pledge to the Collateral Agent or any Lender, or to grant to the Collateral Agent or any Lender a Lien on any collateral as security for the Obligations of such Loan Party from time to time existing in respect of the Financing Agreement and the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in all respects.

(g) Reaffirmation . Each Loan Party hereby reaffirms its obligations under each Loan Document to which it is a party. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document, to Collateral Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.

5. No Other Waivers . Except as expressly provided in this Amendment, all of the terms and conditions of the Financing Agreement and the other Loan Documents remain in full force and effect. Nothing contained in this Amendment shall (a) be construed to imply a willingness on the part of the Agents or the Lenders to grant any similar or other future waiver or amendment of any of the terms and conditions of the Financing Agreement or the other Loan Documents or (b) in any way prejudice, impair or effect any rights or remedies of the Agents or the Lenders under the Financing Agreement or the other Loan Documents.

6. Miscellaneous .

(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or electronic mail transmission shall be effective as delivery of a manually executed counterpart of this Amendment, but upon the request of an Agent the parties shall deliver original executed copies of the Amendment.

(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York .

(d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement, as and when provided in Section 9.01 of the Financing

 

5


Agreement, if (i) any representation or warranty made by a Loan Party under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) a Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.

(e) Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “ Released Parties ”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.

(f) This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(g) The Borrowers agree to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Lenders in connection with the preparation, execution and delivery of this Amendment and the other related agreements, instruments and documents.

(h) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE REVISIONS CONTEMPLATED HEREIN.

[Remainder of Page Left Intentionally Blank]

 

 

6


IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

 

BORROWERS:
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:   /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary

FUNKO HOLDINGS LLC

By:   /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary

By:

  /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary

LOUNGEFLY, LLC

By:

  /s/ Russell Nickel
  Name:   Russell Nickel
  Title:   Chief Financial Officer and Secretary

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


COLLATERAL AGENT:

CERBERUS BUSINESS FINANCE, LLC

By:   /s/ Daniel Wolf
  Name:   Daniel Wolf
  Title:   Chief Executive Officer

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


ADMINISTRATIVE AGENT AND LENDER:

PNC BANK, NATIONAL ASSOCIATION

By:   /s/ Robert Anchundia
  Name:   Robert Anchundia
  Title:   Senior Vice President

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


     LENDERS :
CERBERUS ASRS FUNDING LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President
CERBERUS AUS LEVERED HOLDINGS LP

By: CAL I GP Holdings LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director
CERBERUS AUS LEVERED II LP

By: CAL II GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President
CERBERUS FSBA LEVERED LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:  
CERBERUS ICQ LEVERED LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President
CERBERUS ICQ LEVERED II LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


CERBERUS ICQ OFFSHORE LEVERED LP

By: Cerberus ICQ Offshore GP LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director
CERBERUS ICQ OFFSHORE LOAN OPPORTUNITIES MASTER FUND, L.P.

By: Cerberus ICQ Offshore Levered GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director
CERBERUS KRS LEVERED LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

CERBERUS LOAN FUNDING XV L.P.

By: Cerberus ICQ GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

CERBERUS LOAN FUNDING XVI LP

By: Cerberus PSERS GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


CERBERUS LOAN FUNDING XVII LTD.

By: Cerberus ASRS Holdings LLC, its attorney-in-fact

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President
CERBERUS LOAN FUNDING XVIII L.P.

By: Cerberus LFGP XVIII, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

CERBERUS LOAN FUNDING XIX L.P

By: Cerberus LFGP XIX, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director
CERBERUS N-1 FUNDING LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

CERBERUS OFFSHORE LEVERED III LP

By: COL III GP Inc.

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


CERBERUS PSERS LEVERED LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President
CERBERUS REDWOOD LEVERED LOAN OPPORTUNITIES FUND A, L.P.

By: Cerberus Redwood Levered Opportunities GP A, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

CERBERUS REDWOOD LEVERED LOAN OPPORTUNITIES FUND B, L.P.

By: Cerberus Redwood Levered Opportunities GP LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director
CERBERUS SWC LEVERED II LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

CERBERUS ASRS HOLDINGS LLC

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


CERBERUS FSBA HOLDINGS LLC
By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Vice President

CERBERUS KRS LEVERED LOAN

OPPORTUNITIES FUND, L.P.

BY: Cerberus KRS Levered Opportunities GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

CERBERUS LEVERED LOAN OPPORTUNITIES FUND III, L.P.

By: Cerberus Levered Opportunities III GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.

By: Cerberus NJ Credit Opportunities GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

CERBERUS PSERS LEVERED

LOAN OPPORTUNITIES FUND, L.P.

By: Cerberus PSERS Levered Opportunities GP, LLC

Its: General Partner

By:   /s/ Eric Miller
  Name:   Eric Miller
  Title:   Senior Managing Director

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


FORTRESS CREDIT OPPORTUNITIES III CLO LP

By: FCO III CLO GP LLC, its General Partner

By:   /s/ Constantine M. Dakolias
  Name:   Constantine M. Dakolias
  Title:   President

FORTRESS CREDIT OPPORTUNITIES V CLO LIMITED

 

By: FCO V CLO CM LLC, its Collateral Manager

By:   /s/ Constantine M. Dakolias
  Name:   Constantine M. Dakolias
  Title:   President

FORTRESS CREDIT OPPORTUNITIES VII CLO LIMITED

 

By: FCO VII CLO CM LLC, its Collateral Manager

By:   /s/ Constantine M. Dakolias
  Name:   Constantine M. Dakolias
  Title:   President

FORTRESS CREDIT OPPORTUNITIES VI CLO LIMITED

 

By: FCO VI CLO CM LLC, its Collateral Manager

By:   /s/ Constantine M. Dakolias
  Name:   Constantine M. Dakolias
  Title:   President
DBD CREDIT FUNDING LLC
By:   /s/ Constantine M. Dakolias
  Name:   Constantine M. Dakolias
  Title:   President

 

 

AMENDMENT NO. 5 TO

FINANCING AGREEMENT


EXHIBIT A

[See attached Redline of Financing Agreement]


EXECUTION VERSION

Incorporating Amendment No. 4 5

FINANCING AGREEMENT

Dated as of October 30, 2015

by and among

FUNKO ACQUISITION HOLDINGS, L.L.C.,

as Ultimate Parent and a Borrower,

FUNKO HOLDINGS LLC,

as Parent and a Borrower,

FUNKO, LLC

as a Borrower,

EACH OF THE GUARANTORS (AS DEFINED HEREIN),

as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

as Lenders,

CERBERUS BUSINESS FINANCE, LLC,

as Collateral Agent,

and

PNC BANK, NATIONAL ASSOCIATION

as Administrative Agent


TABLE OF CONTENTS

 

    

Page

 

ARTICLE I. DEFINITIONS; CERTAIN TERMS

     2  

Section 1.01

 

Definitions

     2  

Section 1.02

 

Terms Generally

     55 59  

Section 1.03

 

Certain Matters of Construction

     55 60  

Section 1.04

 

Accounting and Other Terms

     56 60  

Section 1.05

 

Time References; Notices

     56 61  

Section 1.06

 

Effectiveness of the Borrowers

     56 61  

ARTICLE II. THE LOANS

     57 61  

Section 2.01

 

Commitments

     57 61  

Section 2.02

 

Making the Loans

     58 63  

Section 2.03

 

Repayment of Loans; Evidence of Debt

     61 67  

Section 2.04

 

Interest

     62 69  

Section 2.05

 

Reduction of Commitment; Prepayment of Loans

     63 71  

Section 2.06

 

Fees

     67 76  

Section 2.07

 

LIBOR Option

     70 81  

Section 2.08

 

Funding Losses

     72 83  

Section 2.09

 

Taxes

     73 84  

Section 2.10

 

Increased Costs and Reduced Return

     76 89  

Section 2.11

 

Extended Term Loans and Extended Revolving Credit Commitments

     78 91  

Section 2.12

 

Mitigation Obligations; Replacement of Lenders

     82 96  

ARTICLE III. LETTERS OF CREDIT

     83 97  

Section 3.01

 

Letters of Credit

     83 97  

Section 3.02

 

Issuance of Letters of Credit

     83 98  

Section 3.03

 

Requirements For Issuance of Letters of Credit

     85 100  

Section 3.04

 

Disbursements, Reimbursement

     86 100  

Section 3.05

 

Repayment of Participation Revolving Loans

     87 102  

Section 3.06

 

Documentation

     87 103  

Section 3.07

 

Determination to Honor Drawing Request

     88 103  

Section 3.08

 

Nature of Participation and Reimbursement Obligations

     88 103  

Section 3.09

 

Indemnity

     89 105  

Section 3.10

 

Liability for Acts and Omissions

     90 106  

ARTICLE IV. APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS

     91 107  

Section 4.01

 

Payments; Computations and Statements

     91 107  

Section 4.02

 

Sharing of Payments

     93 109  

Section 4.03

 

Apportionment of Payments

     93 109  

Section 4.04

 

Defaulting Lenders

     95 111  

Section 4.05

 

Joint and Several Liability of the Borrowers

     96 113  

ARTICLE V. CONDITIONS TO LOANS

     97 115  

 

-i-


Section 5.01

 

Conditions Precedent to Effectiveness

     97 115  

Section 5.02

 

Conditions Precedent to All Loans and Letters of Credit

     101 120  

Section 5.03

 

Conditions Subsequent to Effectiveness

     102 121  

ARTICLE VI. REPRESENTATIONS AND WARRANTIES

     103 122  

Section 6.01

 

Representations and Warranties

     103 122  

ARTICLE VII. COVENANTS OF THE LOAN PARTIES

     112 135  

Section 7.01

 

Affirmative Covenants

     112 135  

Section 7.02

 

Negative Covenants

     124 150  

Section 7.03

 

Financial Covenants

     132 161  

ARTICLE VIII. MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE AND OTHER COLLATERAL

     133 163  

Section 8.01

 

Collection of Accounts Receivable; Management of Collateral

     133 163  

Section 8.02

 

Covenant Re-Dating; Pledge of Credit

     135 165  

Section 8.03

 

Collateral Custodian

     135 165  

ARTICLE IX. EVENTS OF DEFAULT

     136 166  

Section 9.01

 

Events of Default

     136 166  

ARTICLE X. AGENTS

     140 171  

Section 10.01

 

Appointment

     140 171  

Section 10.02

 

Rights, Exculpation, Etc.

     141 172  

Section 10.03

 

Reliance

     142 173  

Section 10.04

 

Indemnification

     142 173  

Section 10.05

 

Agents Individually

     143 174  

Section 10.06

 

Successor Agent

     143 174  

Section 10.07

 

Collateral Matters

     144 175  

Section 10.08

 

Agency for Perfection

     146 178  

Section 10.09

 

No Reliance on any Agent’s Customer Identification Program

     146 178  

Section 10.10

 

No Third Party Beneficiaries

     147 179  

Section 10.11

 

No Fiduciary Relationship

     147 179  

Section 10.12

 

Reports; Confidentiality; Disclaimers

     147 179  

Section 10.13

 

Conduct of business by the Lenders and Agents

     148 180  

ARTICLE XI. GUARANTY

     148 180  

Section 11.01

 

Guaranty

     148 180  

Section 11.02

 

Guaranty Absolute

     149 181  

Section 11.03

 

Waiver

     150 182  

Section 11.04

 

Continuing Guaranty; Assignments

     150 183  

Section 11.05

 

Subrogation

     150 183  

ARTICLE XII. MISCELLANEOUS

     151 184  

Section 12.01

 

Notices, Etc.

     151 184  

Section 12.02

 

Amendments, Etc.

     154 187  

Section 12.03

 

No Waiver; Remedies, Etc.

     156 190  

 

-ii-


Section 12.04

 

Expenses; Taxes; Attorneys’ Fees

     156 190  

Section 12.05

 

Right of Set-off

     156 191  

Section 12.06

 

Severability

     158 192  

Section 12.07

 

Assignments and Participations

     158 192  

Section 12.08

 

Counterparts

     162 197  

Section 12.09

 

GOVERNING LAW

     162 197  

Section 12.10

 

CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE

     162 198  

Section 12.11

 

WAIVER OF JURY TRIAL, ETC.

     163 199  

Section 12.12

 

[Reserved].

     163 199  

Section 12.13

 

No Party Deemed Drafter

     163 199  

Section 12.14

 

Reinstatement; Certain Payments

     163 199  

Section 12.15

 

[Intentionally Omitted]

     164 199  

Section 12.16

 

Indemnification; Limitation of Liability for Certain Damages

     164 199  

Section 12.17

 

Administrative Borrowers

     165 202  

Section 12.18

 

Records

     166 202  

Section 12.19

 

Binding Effect

     166 202  

Section 12.20

 

Interest

     166 202  

Section 12.21

 

Confidentiality

     167 204  

Section 12.22

 

Public Disclosure

     168 204  

Section 12.23

 

Integration

     168 204  

Section 12.24

 

USA PATRIOT Act

     168 205  

Section 12.25

 

Keepwell

     168 205  

 

-iii-


SCHEDULE AND EXHIBITS

 

Schedule 1.01(A)    Lenders and Lenders’ Commitments
Schedule 1.01(B)    Security Documents
Schedule 6.01(e)    Capitalization; Subsidiaries
Schedule 6.01(f)    Litigation; Commercial Tort Claims
Schedule 6.01(g)    Material Indebtedness
Schedule 6.01(i)    ERISA
Schedule 6.01(l)    Nature of Business
Schedule 6.01(o)    Real Property
Schedule 6.01(r)    Environmental Matters
Schedule 6.01(s)    Insurance
Schedule 6.01(v)    Bank Accounts
Schedule 6.01(w)    Intellectual Property
Schedule 6.01(x)    Material Contracts
Schedule 6.01(cc)    Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN
Schedule 6.01(dd)    Collateral Locations
Schedule 6.01(ee)    Inventory Locations
Schedule 7.02(a)    Existing Liens
Schedule 7.02(b)    Existing Indebtedness
Schedule 7.02(e)    Existing Investments
Schedule 7.02(k)    Limitations on Dividends and Other Payment Restrictions
Schedule 8.01    Cash Management Accounts

 

Exhibit A    Form of Joinder Agreement
Exhibit B    Form of Assignment and Acceptance
Exhibit C    Form of Notice of Borrowing
Exhibit D    Form of LIBOR Notice
Exhibit E    Form of Borrowing Base Certificate
Exhibit F    Form of Letter of Credit Application

 

-iv-


FINANCING AGREEMENT

Financing Agreement, dated as of October 30, 2015 by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as hereinafter defined) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and Funko, LLC, a Washington limited liability company (“ Funko ”, and Funko, together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” hereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages hereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” hereunder or otherwise guaranties all or any part of the Obligations (as hereinafter defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party hereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”).

RECITALS

Pursuant to the Acquisition Agreement (as hereinafter defined), the Buyer has agreed to acquire the Parent.

The Borrowers have asked the Lenders to extend credit consisting of (a) a Term Loan (as hereinafter defined) to be extended to the Borrowers in the aggregate principal amount of $175,000,000, and (b) a revolving credit facility extended to the Borrowers in an amount of up to $50,000,000, which will include a $3,000,000 subfacility for the issuance of letters of credit. The proceeds of the term loans and the loans made under the revolving credit facilities shall be used to finance a portion of the purchase price for the Funko Acquisition (as defined below), for working capital and other general corporate purposes of the Loan Parties, to refinance certain existing indebtedness, to pay fees and expenses related to this Agreement, and to fund a working capital adjustment in connection with the Funko Acquisition, if any. The letters of credit will be used for general working capital purposes. The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth.

In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:

 

- 1 -


ARTICLE I.

DEFINITIONS; CERTAIN TERMS

Section 1.01 Definitions . As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of such terms:

Account Debtor ” means each debtor, customer or obligor in any way obligated on or in connection with any Account Receivable.

Account Receivable ” means, with respect to any Person, any and all accounts (as that term is defined in the Uniform Commercial Code) and any and all rights of such Person to payment for goods sold and/or services rendered, including accounts, general intangibles and any and all such rights evidenced by chattel paper, instruments or documents, whether due or to become due and whether or not earned by performance, and whether now or hereafter acquired or arising in the future, and any proceeds arising therefrom or relating thereto.

Acon Investors ” means ACON Funko Investors, L.L.C., a Delaware limited liability company and each other Person that becomes a lender of Acon Subordinated Indebtedness pursuant to an Acon Subordinated Note, and executes a joinder to the Acon Notes Subordination Agreement.

Acon Subordinated Indebtedness ” shall mean the debt obligations of the Ultimate Parent to Acon Investors under the Acon Subordinated Notes, in an aggregate principal amount not to exceed $20,000,000 (plus any interest paid in kind in accordance with the Acon Subordinated Notes).

Acon Subordinated Indebtedness Permitted Payments ” means (a) regularly scheduled payments in kind (and not in cash) of interest on the Acon Subordinated Indebtedness in accordance with the Acon Subordinated Notes, (b) after the fifth anniversary of an Acon Subordinated Note, AHYDO payments on the Acon Subordinated Indebtedness pursuant to Section 6 of such Acon Subordinated Note, (c) cash payments of principal (including capitalized interest and accrued interest on such principal amount subject to payment) after a Qualified Initial Public Offering, using the proceeds of such Qualified Initial Public Offering, and (d) voluntary cash prepayments of principal (including capitalized interest and accrued interest on such principal amount subject to payment) and cash payments of regularly scheduled interest on the Acon Subordinated Indebtedness; provided, that such payments shall only be permitted to be paid if: (i) no Default or Event of Default shall have occurred and be continuing, or would result from such prepayment, (ii) Availability would not be less than $15,000,000 immediately after giving effect to such payment and (iii) the Loan Parties shall be in compliance on a pro forma basis with the covenants set forth in Section 7.03 hereof, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered (or are required to have been delivered) under Section 7.01(a)(i) hereof.

 

- 2 -


Acon Subordinated Notes ” means each Subordinated Promissory Note by Ultimate Parent in favor of an Acon Investor, each in substantially the same form as that certain Subordinated Promissory Note, dated as of June 26, 2017, by Ultimate Parent in favor of ACON Funko Investors, L.L.C., a Delaware limited liability company, as each of the foregoing may be amended, restated, supplemented or otherwise modified from time to time in compliance with the terms of the Subordination Agreement.

Acon Notes Subordination Agreement ” means that certain Subordination Agreement, dated as of June 26, 2017, by and between Collateral Agent and each Acon Investor, as acknowledged by the Borrowers, as the same may be amended, restated, supplemented or otherwise modified from time to time in compliance with the terms thereof.

Acquired Indebtedness ” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party in a Permitted Acquisition; provided that (x) such Indebtedness was in existence prior to the date of such Permitted Acquisition and was not incurred in connection with, or in contemplation of, such Permitted Acquisition and (y) such Indebtedness is not secured by any Liens on the assets of any Loan Party or any Subsidiary of any Loan Party except for Permitted Liens.

Acquisition ” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.

Acquisition Agreement ” means the Securities Purchase and Contribution Agreement, dated as of October 9, 2015 by and among (i) Funko Acquisition Holdings, L.L.C., a Delaware limited liability company, as the purchaser, (ii) Funko, LLC, a Washington limited liability company, as the company, (iii) Funko Holdings LLC, a Delaware limited liability company, as the parent, and (iv) Funko International, LLC, a Delaware limited liability company, Jon P. and Trishawn P. Kipp Children’s Trust, Brian Mariotti and Shannon Mariotti, a married couple resident in the State of                 , GLAD Funko Investments, Inc., a Delaware corporation, GAIN Funko Investments, Inc., a Delaware corporation, and each of the additional sellers identified on Exhibit A attached thereto, as amended or otherwise modified in a manner permitted hereunder.

Acquisition Assets ” means all of the property and assets (tangible and intangible) proposed to be purchased by the Buyer pursuant to the Acquisition Agreement.

Acquisition Documents ” means the Acquisition Agreement and all other operative agreements related thereto or executed in connection therewith.

Action ” has the meaning specified therefor in Section 12.12.

Administrative Agent ” has the meaning specified therefor in the preamble hereto.

Administrative Agent’s Account ” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders under this Agreement and the other Loan Documents.

 

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Administrative Borrower ” has the meaning specified therefor in Section 12.17.

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party.

Agent ” has the meaning specified therefor in the preamble hereto.

Agent Advances ” has the meaning specified therefor in Section 10.08(a).

Agreement ” means this Financing Agreement, including all amendments, restatements, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.

Agreement Among Lenders ” means the Agreement Among Lenders, dated as of the date hereof, among the Revolving Loan Lenders, on the one hand, and the Term Loan Lenders, on the other hand, as such agreement may be amended, restated, supplemented or otherwise modified pursuant to the terms thereof.

Amendment No.  1 ” means Amendment No. 1 to Financing Agreement, dated as of September 8, 2016, by and among the Agents, the Lenders and the Loan Parties.

Amendment No.  1 Effective Date ” means the “Amendment Effective Date” as defined in Amendment No. 1.

Amendment No.  3 ” means Amendment No. 3 to Financing Agreement, dated as of January 17, 2017, by and among the Agents, the Lenders and the Loan Parties.

Amendment No.  3 Effective Date ” means the “Amendment Effective Date” as defined in Amendment No. 3.

Amendment No.  4 ” means Amendment No. 4 to Financing Agreement, dated as of June 26, 2017, by and among the Agents, the Lenders and the Loan Parties.

“Amendment No.  5” means Amendment No.  5 to Financing Agreement, dated as of June  28, 2017, by and among the Agents, the Lenders and the Loan Parties.

“Amendment No.  5 Effective Date” means the “Amendment Effective Date” as defined in Amendment No.  5.

Anti-Terrorism Laws ” shall mean any Laws relating to, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order,

 

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or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time, including, without limitation, (i) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), as amended, and regulations promulgated thereunder, (ii) the Bank Secrecy Act, as amended, and regulations promulgated thereunder, (iii) the USA PATRIOT Act, as amended, and regulations promulgated thereunder, (iv) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”), (v) the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 and implementing regulations by the United States Department of the Treasury, (vi) any law prohibiting or directed against terrorist activities or the financing of terrorist activities ( e.g ., 18 U.S.C. §§ 2339A and 2339B), or (vii) any similar laws enacted in the United States or any other jurisdictions in which the parties to this agreement operate, as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto.

Applicable Prepayment Premium ” means, as of any date of determination, whether before or after an Event of Default or acceleration and to the extent applicable, (x) with respect to the Term Loan A and the Revolving Credit Commitments, an amount equal to (a) during the period of time from and after the Effective Date up to the date that is the first anniversary of the Effective Date, an amount equal to 2.00% times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loan A on such date, (b) during the period of time after the date that is the first anniversary of the Effective Date up to and including the date that is the second anniversary of the Effective Date, an amount equal to 1.00% times the sum of (i) the amount of any permanent reduction or termination of the Total Revolving Credit Commitment on such date (or, in the case of a termination of the Revolving Credit Commitment, the total amount of the Revolving Credit Commitment immediately prior to such termination) plus (ii) the principal amount of any prepayment of the Term Loan A on such date, and (c) thereafter, zero, and (y) with respect to the Term Loan B, an amount equal to (a) during the period of time from and after the Amendment No. 3 Effective Date up to the date that is the first anniversary of the Amendment No. 3 Effective Date, an amount equal to 2.00% times the principal amount of any prepayment of the Term Loan B on such date, (b) during the period of time after the date that is the first anniversary of the Amendment No. 3 Effective Date up to and including the date that is the second anniversary of the Amendment No. 3 Effective Date, an amount equal to 1.00% times the principal amount of any prepayment of the Term Loan B on such date, and (c) thereafter, zero.

Assignment and Acceptance ” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Collateral Agent, in accordance with Section 12.07 hereof and substantially in the form of Exhibit  B hereto or such other form acceptable to the Collateral Agent.

 

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Authorized Officer ” means, with respect to any Person, the chief executive officer, chief financial officer, president, vice president-controller, treasurer or vice president of such Person.

Availability ” means, as of any date of determination, the result of (a) the lesser of (i) the Borrowing Base (as determined pursuant to the most recently delivered Borrowing Base Certificate) and (ii) the Total Revolving Credit Commitment, minus (b) the sum of (i) the aggregate outstanding principal amount of all Revolving Loans plus (ii) all Letter of Credit Obligations plus (iii) all outstanding fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04 which have been invoiced to Borrower (to the extent required under Section 4.01) prior to the date on which the most recent Borrowing Base Certificate has been delivered but not yet paid, minus (c) all of the Loan Parties’ accounts payable for which ninety (90) days or more have elapsed from the applicable invoice due date (as determined pursuant to the most recently delivered Borrowing Base Certificate).

Available Equity Proceeds ” means the cumulative net cash proceeds of any issuances of Qualified Equity Interests (other than Permitted Cure Stock) after the Effective Date, as such amount may be reduced to reflect application pursuant to clause (h) of the definition of Permitted Acquisition, clause (p) of the definition of Permitted Investments or clause (i) of the definition of Capital Expenditures.

Bank ” means PNC, its successors or any other bank designated by the Administrative Agent to the Administrative Borrower from time to time.

Bank Product Agreements ” means those certain cash management service agreements entered into from time to time between Borrowers, on the one hand, and an Agent or a Lender or its Affiliates, on the other hand, in connection with any of the Bank Products, including, without limitation, any Lender-Provided Hedge Agreement.

Bank Product Provider ” means any Agent or Lender or Affiliate thereof that provides Bank Products to any Loan Party.

Bank Product Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Administrative Agent or any Lender as a result of Administrative Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to such Person pursuant to the Bank Product Agreements. Notwithstanding any of the foregoing, Bank Product Obligations shall not include any Excluded Hedge Liabilities.

Bank Product Reserve ” means, as of any date of determination, the lesser of (i) $2,000,000 and (ii)  the amount of reserves that the Administrative Agent has established (based upon the Administrative Agent’s reasonable determination of the credit exposure in respect of the then extant Bank Products) in respect of Bank Product Obligations under Bank Products then

 

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provided or outstanding, but only to the extent that such reserves are taken with respect to Bank Product Obligations which exceed $5,000,000 at any time outstanding; provided that, in order to qualify as a Bank Product Reserve, such reserve must be established on or substantially contemporaneous with the date that the applicable Bank Product is provided.

Bank Products ” means any service or facility extended to the Borrowers by any Lender or its Affiliates including: (i) credit cards, (ii) credit card processing services, (iii) debit cards and stored value cards, (iv) purchase cards and commercial cards, (v) ACH transactions, (vi) cash management and treasury management services and products, including without limitation controlled disbursement, accounts or services, lockboxes, automated clearinghouse transactions, overdrafts, interstate depository network services, or (vii) Lender-Provided Hedge Agreements and other foreign exchange or “FX” cash management products.

Bankruptcy Code ” means (i) the United States Bankruptcy Code (11 U.S.C. § 101, et seq .), as amended, and any successor statute and (ii) such other applicable rules, laws or statutes of any Government Authority or court of a jurisdiction outside of the United States of America relating to bankruptcy, insolvency, assignments for the benefit of creditors, formal or informal moratoria, compositions, or extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief, as amended and in effect from time to time, and any successor rule, law or statute.

Blocked Person ” has the meaning assigned to such term in Section 6.01(ii).

Board ” means the Board of Governors of the Federal Reserve System of the United States.

Board of Directors ” means, (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

Book Value ” means, with respect to any Inventory of any Person, the lower of (a) cost (as reflected in the general ledger of such Person before customary reserves established by such Person in good faith and in accordance with GAAP) and (b) market value, in each case, determined in accordance with GAAP calculated on a first-in first-out basis.

Borrower ” has the meaning specified therefor in the preamble hereto.

Borrowing Base ” means, at any time, an amount equal to (1) the lesser of (A) the then-existing Maximum Revolving Loan Amount and (B) the sum of (i) the lesser of (x) seventy percent (70%) of the Book Value of Eligible Inventory of the Borrowers at such time and (y) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Inventory of the Borrowers at such time, plus (ii) the lesser of (x) ten percent (10%) of the then-existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, and (z)

 

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eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of Eligible In-Transit Inventory of the Borrowers at such time, plus (iii) eighty-five percent (85%) of the Net Amount of Eligible Domestic Accounts Receivable of the Borrowers at such time, plus (iv) the lesser of (x) twenty percent (20%) of the then-existing Maximum Revolving Loan Amount and (y) eighty-five percent (85%) of the Net Amount of Eligible Foreign Accounts Receivable of the Borrower at such time, plus (v) the lesser of (x) thirty percent (30%) of the then existing Maximum Revolving Loan Amount, (y) seventy percent (70%) of the Book Value of Eligible Special Inventory of the Borrowers at such time, and (z) eighty-five percent (85%) times the most recently determined Net Liquidation Percentage times the Book Value of the Eligible Special Inventory of the Borrowers at such time, plus (vi)  the Special Advance Amount, minus (2) the aggregate amount of Reserves established by the Administrative Agent at such time.

Borrowing Base Certificate ” means a certificate signed by an Authorized Officer of the Administrative Borrower and setting forth the calculation of the Borrowing Base in compliance with Section 7.01(a)(vi), substantially in the form of Exhibit  E .

Business Day ” means (a) for all purposes other than as described in clause (b) below, any day other than Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in Pittsburgh, Pennsylvania or New York City, (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, LIBOR Rate Loans, any day that is a Business Day described in clause (a) above and on which dealings in Dollars may be carried on in the interbank eurodollar markets in New York City and London.

Buyer ” has the meaning specified therefor in the preamble hereto.

Capital Expenditures ” means, with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed and including all Capitalized Lease Obligations paid or payable during such period; provided , however , that the following shall not constitute Capital Expenditures: (i) expenditures to the extent that they are financed with the Available Equity Proceeds, (ii) expenditures to the extent that they are made with the proceeds of Reinvestment Eligible Funds, (iii) expenditures to the extent that they are made by the Ultimate Parent or any of its Subsidiaries to effect leasehold improvements to any property leased by such Person as lessee, to the extent that such expenses have been reimbursed in cash by the landlord that is not a Loan Party, (iv) expenditures to the extent that they are actually paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other Person (whether before, during or after such period), and (v) property, plant and equipment taken in settlement of accounts.

Capitalized Lease ” means, with respect to any Person, any lease of real or personal property by such Person as lessee which is (a) required under GAAP to be capitalized on the balance sheet of such Person or (b) a transaction of a type commonly known as a

 

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“synthetic lease” ( i.e. , a lease transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

Capitalized Lease Obligations ” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

Cash Collateralize ” means to deliver to the Administrative Agent an amount in the applicable currency in which any Letter of Credit is denominated (whether in cash or in the form of a backstop letter of credit in form and substance reasonably satisfactory to, and issued by a U.S. commercial bank reasonably acceptable to, the Administrative Agent in its Permitted Discretion) equal to 105% of the sum of (a) the maximum aggregate amount available for drawing under any outstanding Letter of Credit plus the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit which have not been converted to Revolving Loans plus (b) the amount of unpaid Letter of Credit Fees then accrued. Derivatives of such term have corresponding meanings. Without limiting the generality of any other grant of Liens in any Loan Document, each Loan Party hereby grants to Administrative Agent a continuing and first priority security interest in all Cash Collateral delivered to Administrative Agent to secure all Letter of Credit Obligations and/or Post-Term Letter of Credit Obligations, as applicable.

Cash Equivalents ” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within six months from the date of acquisition thereof; and (g) in the case of Investments by a foreign Subsidiary, investments/instruments corresponding to and with equivalent quality to investments/instruments described in the foregoing clauses (a) through (f) available in and/or guaranteed by the equivalent Governmental Authorities in the country in which such foreign Subsidiary is located.

Cash Management Accounts ” means the bank accounts of each Loan Party (other than (a) accounts specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees, (b) any account

 

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over which the grant of a Cash Management Agreement is legally prohibited or which constitute cash collateral in respect of a Permitted Lien and (c) any account with an average daily balance during any month no greater than $50,000 (provided that the aggregate average daily balance during any month in all such accounts is less than $200,000).

Cash Management Agreement ” means a deposit account control agreement, in form and substance reasonably satisfactory to the Agents, by and among a Loan Party, the Collateral Agent and a Cash Management Bank with respect to each Cash Management Account.

Cash Management Bank ” has the meaning specified therefor in Section 8.01(a).

Cerberus ” has the meaning specified therefor in the preamble hereto.

CEA ” means the Commodity Exchange Act (7 U.S.C.§1 et seq.), as amended from time to time, and any successor statute.

CFC ” means a controlled foreign corporation (as that term is defined in the IRC).

CFTC ” means the Commodity Futures Trading Commission.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith (whether or not having the force of law) and (ii) all requests, rules, regulations, guidelines , interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each case, pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued, promulgated or implemented.

Change of Control ” means each occurrence of any of the following:

(a) prior to the occurrence of either (i) the first public offering by Ultimate Parent (or by its direct or indirect parent company) of the Equity Interests in Ultimate Parent (or in its direct or indirect parent company, as the case may be) after the Effective Date pursuant to a registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act (a “ Qualified Initial Public Offering ”) or (ii) a private placement by Ultimate Parent (or by its direct or indirect parent company) of the Equity Interests in Ultimate Parent (or in its direct or indirect parent company, as the case may be) (a “ Private Placement ”), the Permitted Holders cease beneficially and of record to own and control, directly or indirectly, at least 50.1% on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of the Ultimate Parent;

 

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(b) after the occurrence of either of a Qualified Initial Public Offering or a Private Placement, (i) the Permitted Holders cease beneficially and of record to own and control, directly or indirectly, at least 25% on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of the Ultimate Parent or (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Permitted Holders is or shall at any time become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than the percentage (measured on a fully diluted basis) of the voting power of the Equity Interests of the Ultimate Parent then owned, directly or indirectly, by the Permitted Holders;

(c) during any period of two consecutive years following the Effective Date, individuals who at the beginning of such period constituted the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) (together with any new directors whose election by such Board of Directors or whose nomination for election by the members of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) was approved by a vote of at least a majority the directors or managers of the Ultimate Parent (or its direct or indirect ultimate parent holding company of which Ultimate Parent is a wholly-owned Subsidiary) then still in office who were either directors or managers at the beginning of such period, or whose election or nomination for election was previously approved by the Board of Directors) cease for any reason to constitute a majority of the Board of Directors of the Ultimate Parent (or its direct or indirect ultimate parent holding company);

(d) the Ultimate Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party (other than in connection with any transaction permitted pursuant to Section 7.02(c)), free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens not arising under the Loan Documents that are consensual or contractual Liens); or

(e) a “Change of Control” (or any comparable term or provision) under or with respect to any Disqualified Equity Interests or the Subordinated Indebtedness of the Ultimate Parent or any of its Subsidiaries.

 

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Collateral ” means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.

Collateral Agent ” has the meaning specified therefor in the preamble hereto.

Collateral Assignment ” means the Collateral Assignment of Acquisition Documents, dated as of the date hereof, and in form and substance reasonably satisfactory to the Collateral Agent, made by the Buyer in favor of the Collateral Agent.

Collections ” means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds).

Commitments ” means, with respect to each Lender, such Lender’s Revolving Credit Commitment and Term Loan B A-1 Commitment.

Consolidated Adjusted Working Capital ” means at any date the excess of (i) Consolidated Current Assets (excluding (a) deferred tax assets and (b) cash and Cash Equivalents classified as such in accordance with GAAP) over (ii) Consolidated Current Liabilities (excluding (a) deferred tax liabilities and (b) the current portion of any Consolidated Funded Indebtedness); provided however that Consolidated Adjusted Working Capital shall be calculated without giving effect to any Consolidated Current Assets or Consolidated Current Liabilities acquired or assumed in any Permitted Acquisition consummated during the applicable period to the extent financed with Indebtedness, Equity Issuances of Parent, or Reinvestment Eligible Funds.

Consolidated Cash Interest Expense ” means, for any period, Consolidated Net Interest Expense that has been paid or is payable in cash during such period, other than (without duplication and to the extent, but only to the extent, included in the determination of Consolidated Net Interest Expense for such period in accordance with GAAP and paid in cash for such period): (i) amortization of debt discount and debt issuance fees, (ii) any fees (including underwriting fees) and expenses paid in connection with the consummation of the Acquisition or the consummation or proposed consummation of any Permitted Acquisition), (iii) any payments made to obtain Hedging Agreements and (iv) any agent or collateral monitoring fees paid or required to be paid pursuant to any Loan Document.

Consolidated Current Assets ” means at any date the consolidated current assets of Ultimate Parent and its Subsidiaries determined as of such date.

Consolidated Current Liabilities ” means at any date, without duplication, (i) the consolidated current liabilities of Ultimate Parent and its Subsidiaries plus (ii) all guaranty obligations of Ultimate Parent or any consolidated Subsidiary of Ultimate Parent in respect of the current liabilities of any Person (other than Ultimate Parent or a consolidated Subsidiary of Ultimate Parent), determined as of such date.

 

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Consolidated EBITDA ” means, with respect to any Person for any period, (a) Consolidated Net Income plus (b) without duplication, the sum of the following amounts to the extent deducted in determining Consolidated Net Income of such Person and its Subsidiaries for such period: (i) Consolidated Net Interest Expense, (ii) income tax expense minus any income tax benefit recorded (but only to the extent such result is a positive number), (iii) depreciation expense, (iv) amortization expense, (v) Permitted Management Fees paid or accrued by such Person or its Subsidiaries to any of its Affiliates during such period, (vi) fees and expenses for third party professionals, agents and advisors and other transaction costs and expenses incurred in connection with the closing of the Acquisition contemplated by the Acquisition Agreement , the Loan Documents and , Permitted Acquisitions (whether or not consummated) and any initial public offering (whether or not consummated) after the Effective Date (including (A) in connection with the closing of the Acquisition contemplated by the Acquisition Agreement , fees payable to the Permitted Holders and their Affiliates in an aggregate amount not to exceed $11,700,000, and consent fees payable to third party licensors and lessors in an aggregate amount not to exceed $8,500,000; provided that the amount of such fees and expenses are actually incurred within 180 days of the Effective Date and , (B) any other Permitted Acquisitions (whether or not consummated) and after the Effective Date to the extent the aggregate amount of such fees and expenses under this subclause (B)  does not exceed $2,000,000 in any Fiscal Year and (C)  any initial public offering (whether or not consummated) after the Effective Date to the extent the aggregate amount of such fees and expenses under this subclause ( B C ) does not exceed $ 2,000,000 4,000,000 in any Fiscal Year), (vii) non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and similar arrangements, (viii) all other non-cash, non-recurring charges (other than any such non-cash expenses or charges that represent an accrual or reserve for future cash expenses or charges or a write-down or write-off of current assets (other than as a result of the application of purchase accounting)), including, without limitation, non-cash exchange, translation, or performance losses relating to any hedging transactions or foreign currency fluctuation, non-cash charges in respect of earnouts, non-cash mark-to-market expenses relating to any Hedging Agreement permitted hereunder, non-cash stock or equity compensation and non-cash charges associated with any write-off of deferred amortization costs, (ix) non-recurring cash charges resulting from severance, consulting, advisory and other similar transition expenses, stay or sign on bonuses, retirement of debt, restructuring, consolidation, transition integration and other similar adjustments made as a result of Permitted Acquisitions and other Permitted Investments (including facility start-up costs and pursuit and broken deal costs in respect of acquisitions and investments); provided, that the amounts added back pursuant to this clause (ix) and clause (x) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (x) pro forma cost savings and synergies (net of actual amounts realized) in connection with any Permitted Acquisition or other Permitted Investments that are identifiable, factually supported and validated by an independent third party financial analysis and expected to occur within the next twelve (12) months based on specifically identifiable actions which have been taken or will be taken; provided, that the amounts added back pursuant to this clause (x) and clause (ix) shall not in the aggregate exceed 15% of Consolidated EBITDA (calculated prior to giving effect to such clauses), (xi) any charges associated with the Funko Earnout or the Underground Toys Earnout, (xii) to the extent not included in Consolidated Net Income, cash proceeds of business interruption insurance received during such period and the proceeds of any

 

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indemnification payments received from third parties for items to the extent such items reduced Consolidated Net Income, (xiii) Pro Forma EBITDA from Permitted Acquisitions supported by a quality of earnings report or a certified analysis of the CFO of the Borrower, in either case the results of which shall be reasonably satisfactory to the Collateral Agent, (xiv) expenses in respect of compensation (including payroll taxes) paid to any member of management in lieu of not exercising options in respect of equity in the Borrower (or any direct or indirect parent of the Borrower) to the extent such compensation is limited to such member’s pro rata share of the distributions to be funded with the proceeds of the First Amendment Term Loan or the Term Loan B, (xv) non-cash expenses due to a step-up of inventory value required as a result of the Acquisition and any Permitted Acquisition and (xvi) fees in connection with obtaining and the maintenance of ratings by Standard & Poor’s and Moody’s. Notwithstanding the foregoing, for purposes of calculating the Senior Leverage Ratio only, (x) for the fiscal quarter ended June 30, 2015, Consolidated EBITDA shall be equal to $16,242,000, and (y) for the fiscal quarter ended September 30, 2015, Consolidated EBITDA shall be equal to $24,019,000.

Consolidated Funded Indebtedness ” means, with respect to any Person at any date, all Indebtedness (other than Indebtedness of the type described in clause (g) of the definition of Indebtedness, any Indebtedness that is cash collateralized, any obligations in relation to Funko Preferred Earnout Equity and any contingent earnouts and similar obligations to the extent not due and payable, including the Underground Toys Earnout and the Funko Earnouts, except in the case of any Funko Earnout that is due and payable, in which case the amount of such obligation that is expected to be funded through an Equity Issuance by Ultimate Parent (including the issuance of the Funko Earnout Preferred Equity) shall be excluded from Consolidated Funded Indebtedness to the extent such amount is supported by a written notification from ACON that a capital call was made for such amount (other than in connection with the issuance of Funko Earnout Preferred Equity)) of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, including, in any event, with respect to the Ultimate Parent and its Subsidiaries, the Revolving Loans, the Term Loans, the Letter of Credit Obligations and all Capitalized Lease Obligations of the Ultimate Parent and its Subsidiaries, provided that the aggregate outstanding amount of all Revolving Loan Obligations and Letter of Credit Obligations as of such date shall be calculated on such date based on the average daily balance thereof during the applicable trailing twelve month test period ending on such date.

Consolidated Net Income ” means, with respect to any Person for any period, the net income (loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis and in accordance with GAAP, but excluding from the determination of Consolidated Net Income (without duplication) (a) any extraordinary or non-recurring gains or losses or gains or losses from Dispositions, (b) non-cash restructuring charges and (c) effects of discontinued operations.

Consolidated Net Interest Expense ” means, with respect to any Person for any period, the total interest expense of such Person for such period, whether paid or accrued and whether or not capitalized including, without limitation, any Installment Waiver Fees, amortization of debt issuance costs and original issue discount, interest capitalized during construction, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments under Capitalized Leases (regardless of

 

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whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs (included in interest expense) in respect of Hedging Agreements, in each case determined (i) on a consolidated basis for such period, net of all interest income and (ii) net of amounts paid or payable and/or received or receivable under Hedging Agreements in respect of interest rates.

Contingent Obligation ” means, with respect to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, capitalized leases or dividends (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Covered Entity ” means (a) each Borrower, each of Borrower’s Subsidiaries, all Guarantors and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

Current Value ” has the meaning specified therefor in Section 7.01(o).

 

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Daily LIBOR Rate ” means, for any day, the rate per annum determined by the Administrative Agent by dividing (i) the Published Rate by (ii) a number equal to 1.00 minus the Reserve Percentage.

Debtor Relief Law ” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.

Default ” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

Defaulting Lender ” means, subject to Section 4.04(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has notified the Administrative Borrower, the Administrative Agent or any L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender, subject to Section 4.04(d), upon delivery of written notice of such determination to the Administrative Borrower, each L/C Issuer and each Lender.

 

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Dilution ” means a percentage, reasonably determined by Administrative Agent based upon the experience of the immediately prior ninety (90) days that is the result of dividing the amount of (a) discounts, advertising allowances, credits, or other similar items that are granted in the ordinary course of business with respect to the Borrowers’ Accounts Receivable during such period, by (b) the Borrowers’ billings with respect to Accounts Receivable during such period.

Dilution Reserve ” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts Receivable of the Borrowers, by one (1) percentage point for each percentage point by which Dilution is in excess of five percent (5.0%); provided that the Dilution Reserve shall be calculated without regard to co-op advertising expenses and discounts for advertising expenses that are otherwise taken into account in determining the net amount of Eligible Accounts Receivable and/or other Reserves.

Disposition ” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person, excluding any sales of Inventory in the ordinary course of business.

Disqualified Equity Interests ” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date which is 91 days after the Final Maturity Date (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Interests referred to in clause (a) above, in each case at any time prior to the date which is 91 days after the Final Maturity Date at the option of any Person other than a Loan Party, (c) contains any repurchase obligation that may come into effect either (i) prior to Payment in Full of all Obligations or (ii) prior to the date that is 91 days after the Final Maturity Date or (d) provides for scheduled payments or the payment of cash dividends or distributions prior to the date that is 91 days after the Final Maturity Date.

Document ” shall have the meaning given to the term “document” in the Uniform Commercial Code.

Dollar ,” “ Dollars ” and the symbol “ $ ” each means lawful money of the United States of America.

Dollar Equivalent ” means at any time (i) as to any amount denominated in Dollars, the amount thereof at such time, and (ii) as to any amount denominated in any other currency, the equivalent amount in Dollars calculated by the Administrative Agent in good faith at such time using the Exchange Rate in effect on the Business Day of determination.

 

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Domestic In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location inside the United States to any location of a Loan Party within the United States.

Drawing Date ” has the meaning specified therefor in Section 3.04(b).

Effective Date ” has the meaning specified therefor in Section 5.01.

Effectiveness Date ” means the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.

Eligibility Date ” means, with respect to each Borrower and Guarantor and each Swap, the date on which this Agreement or any other Loan Document becomes effective with respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the Effectiveness Date of such Swap if this Agreement or any other Loan Document is then in effect with respect to such Borrower or Guarantor, and otherwise it shall be the Effectiveness Date of this Agreement and/or such other Loan Document(s) to which such Borrower or Guarantor is a party)

Eligible Accounts Receivable ” means the Accounts Receivable of a Borrower that, meet all of the following specifications:

(a) delivery of the merchandise or the rendition of the services has been completed with respect to such Account Receivable;

(b) no return, rejection, repossession or dispute has occurred with respect to such Account Receivable, the Account Debtor has not asserted any setoff, defense or counterclaim with respect to such Account Receivable, and there has not occurred any extension of the time for payment with respect to such Account Receivable without the consent of the Administrative Agent, provided that, in the case of any dispute, setoff, defense or counterclaim with respect to an Account Receivable, the portion of such Account Receivable not subject to such dispute, setoff, defense or counterclaim will not be ineligible solely by reason of this clause (b);

(c) such Account Receivable is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agent and the Secured Parties and is lawfully owned by a Borrower free and clear of any Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in conformity in all material respects with all representations and warranties made by a Borrower to the Agents and the Lenders with respect thereto in the Loan Documents, and such Borrower has the right to grant Liens on such Account Receivable;

(d) such Account Receivable (i) is not evidenced by a promissory note, chattel paper, bill of sale or any other instrument or other document in respect of which the perfection or priority of the security interest of the Collateral Agent in such document would be enhanced or ensured by possession under applicable law unless the original of such document is in the

 

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possession of the Collateral Agent and contains all necessary endorsements in favor of the Collateral Agent, and (ii) is unconditionally payable in Dollars or, in case of Account Debtors located in Canada, Dollars or Canadian Dollars (converting such Canadian Account Receivable into the Dollar Equivalent thereof as of the date of the delivery of each applicable Borrowing Base Certificate);

(e) if such Account Receivable (x) has selling terms of net 30 days or less, then no more than 60 days have elapsed from the invoice due date or no more than 90 days have elapsed from the invoice date and (y) has selling terms of greater than net 30 days, then no more than 60 days have elapsed from the invoice due date or no more than 120 days have elapsed from the invoice date;

(f) such Account Receivable is not due from an Affiliate of a Borrower;

(g) such Account Receivable does not constitute an obligation of the federal government of the United States (or any other Untied States federal Governmental Authority) which is either (x) eligible for assignment under the Federal Assignment of Claims Act (unless, if applicable, all steps required by the Administrative Agent in connection therewith, including notice to the United States Government under the Federal Assignment of Claims Act have been duly taken in a manner satisfactory to the Administrative Agent) or (y) otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section 9-406 of the Uniform Commercial Code (unless all necessary steps have been taken to comply with such restrictions on assignment), except for any such Accounts Receivable the net invoice amount of which does not exceed, individually as to any such Account Receivable or in the aggregate as to all such Accounts Receivable, $1,000,000 at any one time;

(h) [intentionally omitted];

(i) the Account Debtor with respect to such Account Receivable is not also a supplier to or creditor of a Borrower, unless such Account Debtor has executed a no-offset letter reasonably satisfactory to the Administrative Agent;

(j) with respect to the Account Debtor for such Account Receivable, not more than 50% of the aggregate amount of all Accounts Receivable of such Account Debtor are excluded on the basis of the aging requirements set forth in clause (e) above;

(k) the sale to the Account Debtor is not on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment or any other repurchase or return basis or is evidenced by chattel paper,

(l) [intentionally omitted];

(m) the Account Debtor on the Account Receivable is not a Blocked Person;

(n) the Account Debtor with respect to such Account Receivable (i) has not filed a petition for bankruptcy or any other relief under any Debtor Relief Law, (ii) has not failed, suspended business operations, become insolvent or called a meeting of its creditors or otherwise

 

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commenced action under any assignment for the benefit of creditor statute, (iii) has not had or suffered to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs or (iv) in the case of an Account Debtor who is an individual, is not an employee of a Borrower or any of its Affiliates and has not died or been declared incompetent; and

(o) the Administrative Agent is, and continues to be, satisfied with the credit standing of the Account Debtor in relation to the amount of credit extended, either with respect to such Account Debtor overall and/or specifically with respect to any foreign offices of such Account Debtor, and the Administrative Agent believes, in its Permitted Discretion, that the prospect of collection of such Account Receivable is not impaired for any reason.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Account Receivable at any time ceases to be an Eligible Account Receivable (other than by means of clause (e) or (j) above) and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Account Receivable from the calculation of the Borrowing Base, (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Accounts Receivable acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Accounts Receivable for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower . (it being understood that the Administrative Agent has approved the inclusion of Accounts Receivable acquired pursuant to the Loungefly Acquisition that otherwise constitute Eligible Accounts Receivable hereunder notwithstanding that a Field Survey and Audit with respect thereto may not be completed).

Eligible Contract Participant ” means an “eligible contract participant” as defined in the CEA and regulations thereunder.

Eligible Customs Broker ” shall mean Radiant Customs Services Inc. or another customs broker that has its principal assets and principal place of business in the United States and which is acceptable to Administrative Agent in its Permitted Discretion and with which Collateral Agent has entered into a freight forwarder agreement, in form and substance acceptable to Administrative Agent in its Permitted Discretion.

Eligible Domestic Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located in Canada or the United States.

Eligible Foreign Accounts Receivable ” means any Eligible Accounts Receivable with respect to which the Account Debtor is located outside of Canada or the United States.

Eligible Domestic In-Transit Inventory ” shall mean Inventory that would be Eligible Inventory but for the fact that it is Domestic In-Transit Inventory, but only if: (a) such Domestic In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has

 

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occurred and title has passed to such Borrower; (b) no default exists under any agreement in effect between the vendor of such Inventory and such Borrower that would permit such vendor under any applicable Law (including the Uniform Commercial Code) to divert, reclaim, reroute, or stop shipment of such Inventory; and (c) such Domestic In-Transit Inventory is fully insured in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent in its Permitted Discretion and in respect of which Collateral Agent has been named as lender loss payee.

Eligible Foreign In-Transit Inventory ” shall mean raw materials and finished goods Inventory that would be Eligible Inventory but for the fact that it is Foreign In-Transit Inventory, but only if: (a) such Foreign In-Transit Inventory is the subject of a Negotiable Document that designates Collateral Agent as the consignee; (b) such Foreign In-Transit Inventory has been paid for by Borrowers or Administrative Agent has otherwise satisfied itself that a final sale of such Inventory to the applicable Borrower has occurred and title has passed to such Borrower; (c) Administrative Agent has received assurances satisfactory to it that all of the original Documents evidencing such Foreign In-Transit Inventory (all of which Documents shall be Negotiable Documents) have been issued by the applicable carrier and have been forwarded to an Eligible Customs Broker (and, if such Documents are not actually received by an Eligible Customs Broker within ten (10) days after the sending thereof, such Foreign In-Transit Inventory shall thereupon cease to be Eligible Foreign In-Transit Inventory), or, if required by Administrative Agent in the exercise of its Permitted Discretion, all of such original Documents are in the possession, in the United States, of Administrative Agent or an Eligible Customs Broker (as specified by Administrative Agent); (d) [reserved]; (e) such Foreign In-Transit Inventory is fully insured by marine cargo or other similar insurance, in such amounts, with such insurance companies and subject to such deductibles as are satisfactory to Administrative Agent and in respect of which Collateral Agent has been named as lender loss payee; and (f) Agents have received an executed freight forwarder agreement with respect to such Inventory from an Eligible Customs Broker; provided that, notwithstanding anything to the contrary provided for in the foregoing, during the period of the first 90 days after the Effective Date, no Foreign In-Transit Inventory shall be excluded from Eligible Foreign In-Transit Inventory due to the fact that the applicable customs broker has not yet become an Eligible Customs Broker by entering into an acceptable freight forwarder agreement with Collateral Agent that is acceptable to Administrative Agent; and also provided further that, notwithstanding anything to the contrary contained in this definition, Administrative Agent may from time to time, acting in its Permitted Discretion, treat Foreign In-Transit Inventory that otherwise meets the requirements of this definition as Eligible Foreign In-Transit Inventory regardless of the fact that such Foreign In-Transit Inventory is not the subject of Negotiable Documents and that therefore no such Negotiable Documents have been issued or delivered to the applicable Eligible Customs Broker with respect to such Foreign In-Transit Inventory, but only if and so long as Administrative Agent is satisfied in its Permitted Discretion that conducting such in-transit Inventory transactions without the issuance of Negotiable Documents (x) is in the ordinary course of business of both Borrowers and the applicable Eligible Customs Broker and (y) will not jeopardize the perfection or priority of Collateral Agent’s Lien in the applicable Foreign In-Transit Inventory.

Eligible In-Transit Inventory ” means all Eligible Domestic In-Transit Inventory and Eligible Foreign In-Transit Inventory.

 

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Eligible Inventory ” means all Inventory of a Borrower that meets all of the following specifications:

(a) such Inventory is subject to a first priority perfected and enforceable security interest in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and is lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Secured Parties and otherwise continues to be in full conformity with all representations and warranties made by a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents;

(b) such Inventory is not held on consignment and may be lawfully sold;

(c) a Borrower has the right to grant Liens on such Inventory;

(d) such Inventory arose or was acquired in the ordinary course of the business of a Borrower and does not represent damaged or unsalable goods;

(e) no Account Receivable or document of title has been created or issued by Borrowers with respect to such Inventory, and such Inventory (excluding In-Transit Inventory) is not subject to any document of title;

(f) subject to clause (j) below, such Inventory is located in one of the locations in the continental United States listed on Schedule 6.01(ee) or such other locations as notified to the Administrative Agent in writing from time to time;

(g) if such Inventory consists of finished goods Inventory sold under a licensed trademark or if such Inventory contains or uses a medium subject to a copyright (i) the Collateral Agent shall have entered into a waiver letter, in form and substance reasonably satisfactory to the Administrative Agent, with the licensor with respect to the rights of the Collateral Agent to use the licensed trademark or copyright to sell or otherwise dispose of such Inventory or (ii) the Administrative Agent shall otherwise be satisfied, in its Permitted Discretion (it being understood and agreed that such discretion shall be exercised in a manner that is consistent with the methodology applied in determining Eligible Inventory on the Effective Date), that the Collateral Agent has rights to sell or dispose of such Inventory and such Inventory could be liquidated without assistance or interference from, or the payment of money (other than the payment of royalties and similar fees payable by the licensee connection with such sale or disposition) to, such third party (it being understood that the following aspects of a license or similar agreement shall not result in any related Inventory failing to satisfy this clause (g): any restrictions applicable to dispositions by the licensee due to the effect of any license termination provisions on the ability of the licensee to sell or dispose of such inventory that do not otherwise impose more burdensome obligations on the Collateral Agent in relation to dispositions);

(h) the Inventory is not work-in-process, supplies (other than raw materials used in the manufacture of Inventory) or packaging;

(i) subject to clause (j) below, such Inventory is located on real property owned or leased by a Loan Party or in a contract warehouse or located with a vendor (not including any consigned Inventory of any Borrower held by such vendor as consignee, which shall not be

 

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Eligible Inventory) or processor, in each such case at a location listed on Schedule 6.01(dd) or Schedule 6.01(ee) or a location of which Administrative Agent has received notice under Section 7.01(a)(v) (without regard to any exceptions to location reporting requirements thereunder), and unless such location is real property owned by a Loan Party, (1) either (x) the owner, lessor, warehouseman, vendor, processor or other bailee or third party, as the case may be shall have (within 90 days of the Effective Date, or such later date as may be permitted by the Administrative Agent in its sole discretion) executed and delivered a written subordination, waiver or access agreement in form and substance reasonably satisfactory to the Collateral Agent, or (y) the Administrative Agent has instituted a Reserve with respect to such location (subject to the provisions of Section 7.01(m)), and (2) it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises; and

(j) the Inventory is not In-Transit Inventory.

The Administrative Agent reserves the right, at any time and from time to time after the Effective Date, that if any Inventory at any time ceases to be Eligible Inventory or Eligible In-Transit Inventory, and Administrative Agent becomes aware of such fact, then Administrative Agent may, in the exercise of its Permitted Discretion, exclude such Inventory from the calculation of the Borrowing Base (provided that any such exclusion pursuant to this sentence shall not be effective for the purposes of the definition of Availability). In the event that (i) any Borrower shall acquire any new assets pursuant to an Acquisition or (ii) a new Borrower is added as a party to this Agreement under any circumstance, no such Inventory acquired in such Acquisition or belonging to such new Borrower shall, unless otherwise approved by the Administrative Agent in the exercise of its sole and absolute discretion, be Eligible Inventory or Eligible In-Transit Inventory for any purpose hereunder until Administrative Agent shall have completed a Field Survey and Audit with respect to such assets/new Borrower.

Eligible Special Inventory ” means any Inventory of the Borrower that does not constitute Eligible Inventory or Eligible In-Transit Inventory solely as a result of restrictions or requirements contained in any license or similar agreement relating to such Inventory where the effect of such restrictions or requirements is to cause the requirements of clauses (a), (c) or (g) of the definition of Eligible Inventory to not be satisfied.

Employee Plan ” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was maintained at any time during the six (6) calendar years preceding the date of any borrowing hereunder) for employees of any Loan Party or any of its Subsidiaries.

Environmental Actions ” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving violations of Environmental Laws or Releases of Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Loan Party or any of its Subsidiaries or any predecessor in interest; (b) from adjoining properties or businesses; or (c) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.

 

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Environmental Laws ” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq .), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq .), the Federal Clean Water Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), as such laws may be amended or otherwise modified from time to time, and any other present or future federal, state, local or foreign statute, ordinance, rule, regulation, order, judgment, decree, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other government restrictions relating to the protection of the environment or the Release, deposit or migration of any Hazardous Materials into the environment.

Environmental Liabilities and Costs ” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any environmental condition or a Release of Hazardous Materials from or onto (i) any property presently or formerly owned by any Loan Party or any of its Subsidiaries or (ii) any facility which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries.

Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

Equipment ” means equipment (as that term is defined in the Uniform Commercial Code), and includes machinery, machine tools, motors, furniture, furnishings, vehicles (including motor vehicles), computer hardware, tools, parts, and goods (other than consumer goods, farm products, Inventory or fixtures), wherever located, including all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing.

Equity Interest ” means (a) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (b) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

Equity Issuance ” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by Ultimate Parent of any cash capital contributions.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

 

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ERISA Affiliate ” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

Event of Default ” means any of the events set forth in Section 9.01.

Excess Cash Flow ” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, plus (b) proceeds from any Extraordinary Receipts received during such period to the extent not included in the calculation of Consolidated EBITDA, plus (c) the decrease, if any, in Consolidated Adjusted Working Capital during such period, less (d) the increase, if any, in Consolidated Adjusted Working Capital during such period, less (e) the sum of (i) all scheduled cash principal payments, including any make-whole, prepayment premiums or call premiums not otherwise included pursuant to clause (ii) below, of such Person or any of its Subsidiaries during such period (but, in the case of a revolving credit facility, only to the extent that the commitment thereunder is permanently reduced by the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period, (iii) the cash portion of Capital Expenditures made by such Person and its Subsidiaries during such period (excluding Capital Expenditures to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all loan servicing fees and other similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes and tax distributions paid in cash by such Person and its Subsidiaries for such period, (vi) Permitted Management Fees described in clause (v) of the definition of Consolidated EBITDA that are paid in cash during such period to the extent such payments are permitted, (vii) (A) amounts added back to Consolidated EBITDA for such period pursuant to clauses (vi), (ix), (x), (xi), (xiii) and (xvi) of the definition of “Consolidated EBITDA” and (B) any portion of Pro Forma EBITDA added back to Consolidated EBITDA for such period pursuant to clause (xiii) of the definition of “Consolidated EBITDA” that is attributable to periods prior to the consummation of the corresponding Permitted Acquisition and (viii) cash payments during such period that were paid in respect of Permitted Acquisitions, the Underground Toys Earnout, the Funko Earnout, the Funko Earnout Preferred Equity, the Acon Subordinated Indebtedness or Permitted Investments pursuant to clause (p) of the definition thereof, in each case, to the extent not financed through the incurrence of Indebtedness (other than Indebtedness constituting a Revolver Credit Extension) or through an Equity Issuance.

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Exchange Rate ” means the prevailing spot rate of exchange published by Reuters (or, if such rate is not available from Reuters, another similar publicly available source as Administrative Agent may reasonably select) for the purpose of conversion of one currency to another, at or around 11:00 a.m. New York City time, on the date on which any such conversion of currency, or calculation of the Dollar Equivalent of any amount in any non-Dollar currency (or similar calculation of the foreign currency equivalent of any amount in Dollars) is to be made under this Agreement, provided that, notwithstanding the foregoing, in the context of any actual conversion by any Agent or Lender of any funds received by such Agent or Lender (including

 

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any collections on any Accounts Receivable received by any Agent of Lender) from one currency to another for the purpose of applying such funds to the Obligations, “Exchange Rate” means the spot-buying or spot-selling rate (as the case may be) rate of exchange at which such Agent or Lender is actually able to exchange the one currency for the other in the exercise of its ordinary business practices regarding foreign currency exchange.

Exchange Risk Reserve ” means, with respect to each Revolving Loan advanced or Letter of Credit issued in one currency in reliance on the value of Collateral denominated in another currency, an amount determined from time to time based on the Dollar Equivalent of the outstanding principal amount of such Revolving Loan or the Maximum Undrawn Amount of such Letter of Credit (in each case, to the extent such amount relies on the value of Collateral denominated in another currency) multiplied by the currency volatility index of the currency in which such Revolving Loan is advances or such Letter of Credit is issued as compared to the currency in which the applicable Collateral is denominated (as such currency volatility index is calculated and determined by Administrative Agent in the ordinary course of its business from time to time).

Excluded Foreign Subsidiary ” means any subsidiary of the Ultimate Parent (i) that is a “controlled foreign corporation” as defined in the Internal Revenue Code, (ii) all or substantially all of the assets of which consist of stock of one or more subsidiaries described in clause (i) above, in each case that has not guaranteed or pledged any of its assets or suffered a pledge of more than 65% of its voting stock to secure, directly or indirectly, any indebtedness of the Loan Parties or (iii) any direct or indirect domestic subsidiary of a direct or indirect foreign subsidiary of the Ultimate Parent (and any direct or indirect domestic subsidiary that is a disregarded entity for U.S. federal income tax purposes if substantially all of its assets consist of the equity or indebtedness of one or more direct or indirect foreign subsidiaries).

Excluded Hedge Liability or Liabilities ” means, with respect to each Borrower and Guarantor, each of its Swap Obligations if, and only to the extent that, all or any portion of this Agreement or any Other Document that relates to such Swap Obligation is or becomes illegal under the CEA, or any rule, regulation or order of the CFTC, solely by virtue of such Borrower’s and/or Guarantor’s failure to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap. Notwithstanding anything to the contrary contained in the foregoing or in any other provision of this Agreement or any Other Document, the foregoing is subject to the following provisos: (a) if a Swap Obligation arises under a master agreement governing more than one Swap, this definition shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guaranty or security interest is or becomes illegal under the CEA, or any rule, regulations or order of the CFTC, solely as a result of the failure by such Borrower or Guarantor for any reason to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap; (b) if a guarantee of a Swap Obligation would cause such obligation to be an Excluded Hedge Liability but the grant of a security interest would not cause such obligation to be an Excluded Hedge Liability, such Swap Obligation shall constitute an Excluded Hedge Liability for purposes of the guaranty but not for purposes of the grant of the security interest; and (c) if there is more than one Borrower or Guarantor executing this Agreement or the Other Documents and a Swap Obligation would be an Excluded Hedge Liability with respect to one or more of such Persons, but not all of them, the definition of Excluded Hedge Liability or Liabilities with respect to each such Person shall only be deemed applicable to (i) the particular Swap Obligations that constitute Excluded Hedge Liabilities with respect to such Person, and (ii) the particular Person with respect to which such Swap Obligations constitute Excluded Hedge Liabilities.

 

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Excluded Subsidiary ” means any (a) Excluded Foreign Subsidiary, (b) Immaterial Subsidiary, (c) Subsidiary that is prohibited, but only so long as such Subsidiary would be prohibited, by applicable law, rule or regulation or by any contractual obligation existing on (but not incurred in anticipation of) the date such Subsidiary is acquired or organized (as long as, in the case of an acquisition of a Subsidiary, such prohibition did not arise as part of such acquisition) from guaranteeing the Obligations or that would require governmental or regulatory consent, approval, license or authorization to provide a guarantee unless such consent, approval, license or authorization has been received, (d) special purpose entities to the extent reasonably acceptable to the Required Lenders (such acceptance not to be unreasonably withheld, delayed or conditioned), if any, (e) not-for-profit Subsidiaries, if any, (f) captive insurance companies, or (g) Funko UK and any of its Subsidiaries.

Executive Order No.  13224 ” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Existing Credit Facilities ” means, collectively, (a) the Note Purchase Agreement, dated May 29, 2013, as amended, by and among Funko and Gladstone Business Investment, LLC as successor by assignment from Gladstone Investment Corporation and Gladstone Capital Corporation as successor by assignment from Gladstone Business Loan, LLC and (b) the Credit and Security Agreement, dated as of May 29, 2013, by and among Wells Fargo Bank, National Association, Parent and Funko.

Existing Lenders ” means the lenders and buyers, as applicable, party to the Existing Credit Facilities.

Extended Revolving Credit Commitment ” has the meaning specified therefor in Section 2.11.

Extended Term Loan ” has the meaning specified therefor in Section 2.11.

Extension Amendment ” means an amendment to this Agreement giving effect to the Extension Requests in accordance with Section 2.11.

Extension Election ” has the meaning specified therefor in Section 2.11.

Extension Request ” has the meaning specified therefor in Section 2.11.

Extraordinary Receipts ” means any cash received by the Ultimate Parent or any of its Subsidiaries in respect of (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (d) indemnity payments and (e) any purchase price adjustment received in connection with any purchase agreement in relation to a Permitted Acquisition (other than the Acquisition Agreement).

 

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Facility ” means any real property, including, without limitation, the land on which such facility is located, all buildings and other improvements thereon, all fixtures located at or used in connection with such facility, to the extent owned by any Loan Party, including any New Facility.

FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

FATCA ” has the meaning specified therefor in Section 2.09(e).

Federal Funds Effective Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight Federal funds transactions arranged by Federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided , if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced.

Federal Funds Open Rate ” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by Administrative Agent (an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by Administrative Agent at such time (which determination shall be conclusive absent manifest error); provided however, that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding Business Day. If and when the Federal Funds Rate changes, the rate of interest hereunder will change automatically without notice to the Borrowers, effective on the date of any such change.

Fee Letter ” means the Fee Letter, dated as of the Amendment No.  3 5 Effective Date, among the Borrowers and the Administrative Agent.

Field Survey and Audit ” means a field survey and audit of the Loan Parties and an appraisal of the Collateral performed by auditors, examiners and/or appraisers selected by the Agents.

“Fifth Amendment Flow of Funds Agreement” means a Flow of Funds Agreement, in form and substance reasonably satisfactory to the Agents, by and among the Loan Parties, the Agents and the Lenders, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with Amendment No.  5.

 

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Final Maturity Date ” means the earliest of (i) October 30, 2021, (ii) the date on which all Loans shall become due and payable in accordance with the terms of this Agreement, and (iii) the payment in full of all Obligations and the termination of all Commitments.

Financial Statements ” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2014, and the related consolidated statement of operations, shareholders’ equity and cash flows for the Fiscal Year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the nine (9) months ended September 30, 2015, and the related consolidated statement of operations, shareholder’s equity and cash flows for the nine (9) months then ended.

First Amendment Term Loan ” means the term loan, in the aggregate principal amount of $50,000,000, made by the Lenders on the Amendment No. 1 Effective Date.

Fiscal Quarter ” means any of the quarterly accounting periods of the Loan Parties ending on or about March 31, June 30, September 30 and December 31 of each year.

Fiscal Year ” means any of the annual accounting periods of the Loan Parties ending on or about December 31 of each year.

Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of (a) the result of (i) Consolidated EBITDA of such Person and its Subsidiaries for such period, minus (ii) the sum of (x) unfinanced Capital Expenditures made by such Person and its Subsidiaries during such period (excluding expenditures representing the purchase price for any Permitted Acquisition or Investment permitted pursuant to clause (p) of the definition thereof and excluding unfinanced Capital Expenditures related to the headquarters building (not to exceed $10,000,000 in the aggregate for all periods in which such Capital Expenditures are made) of which $1,698,000 is attributed to the Fiscal Quarter ended December 31, 2016, $4,855,000 is attributed to the Fiscal Quarter ended March 31, 2017 and, as of May 31, 2017 (with the amount being increased for such Capital Expenditures made in June, 2017), $1,767,000 is attributed to the Fiscal Quarter ending June 30, 2017), plus (y) cash income taxes paid by such Person and its Subsidiaries during such period (with such cash income taxes paid being deemed to be $10,078,000 for the Fiscal Quarter ended June 30, 2016, $15,318,000 for the Fiscal Quarter ended September 30, 2016 and $12,900,000 for the Fiscal Quarter ended March 31, 2017), plus (z) all Permitted Management Fees paid in cash by such Person or any of its Subsidiaries to any of its Affiliates during such period, to (b) the sum of (i) all scheduled installments of principal of Indebtedness (excluding any principal payments made in relation to the Acon Subordinated Indebtedness, the Funko Earnout, the Underground Toys Earnout or any Funko Earnout Preferred Equity) of such Person and its Subsidiaries paid during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Cash Interest Expense (excluding any such interest paid or payable in relation to the Acon Subordinated Indebtedness) of such Person and its Subsidiaries for such period, plus (iii) cash dividends or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with any merger or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions (A) paid by a Loan Party to any other Loan Party, (B) constituting tax distributions, (C) by Ultimate Parent in relation to the Funko Earnout Preferred Equity,

 

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including, without limitation, for purposes of redemptions of the Funko Earnout Preferred Equity, (D) made on or about the Amendment No. 1 Effective Date pursuant to Section 7.02(h)(H), or (E) made on or about the Amendment No. 3 Effective Date pursuant to Section 7.02(h)(I)) during such period (clauses (b)(i), (b)(ii) and (b)(iii), collectively, “ Fixed Charges ”); provided, that (x) for the fiscal quarter ending March 31, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on March 31, 2016, (y) for the fiscal quarter ending June 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on June 30, 2016), and (z) for the fiscal quarter ending September 30, 2016, Consolidated EBITDA and Fixed Charges shall be calculated for the period commencing with the Effective Date and ending on September 30, 2016

Flow of Funds Agreement ” means a Flow of Funds Agreement, in form and substance reasonably satisfactory to the Agents, by and among the Loan Parties, the Agents and the Lenders, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with this Agreement.

“Foreign Credit Facility Arrangements” means Indebtedness incurred by any of the Borrowers’ Subsidiaries that are organized in jurisdictions outside of the United States of America to finance their general working capital requirements pursuant to agreements with third party lenders located in the applicable jurisdictions.

Foreign In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit from a location outside the United States to any location of a Loan Party within the United States.

Funding Losses ” has the meaning specified therefor in Section 2.08.

Funko ” has the meaning specified therefor in the preamble hereto.

Funko 2015 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $40,000,000, contingent on the Ultimate Parent achieving at least $60,700,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2015 and payable in 2016 after receipt of the audited financial statements for the 2015 Fiscal Year.

Funko 2016 Earnout ” means the cash earnout to be paid to the Funko Sellers in the amount of (a) $25,000,000, contingent on the Ultimate Parent achieving at least $80,000,000 of Company EBITDA (as defined in, and calculated in accordance with, the Acquisition Agreement) for Fiscal Year 2016 and payable in 2017 after receipt of the audited financial statements for the 2016 Fiscal Year. “ Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

Funko Acquisition ” means the acquisition directly or indirectly of 100% of the voting equity interests of Parent by the Buyer pursuant to the Acquisition Documents.

 

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Funko Earnout ” means, collectively, the Funko 2015 Earnout and the Funko 2016 Earnout.

Funko Earnout Preferred Equity ” means SP Units (as defined in the Funko LLC Agreement) of the Ultimate Parent that are issued as a result of the non-payment of the Funko Earnout within 20 Business Days after the applicable Earnout Determination Date (as defined in the Acquisition Agreement) in accordance with Section 2.5 of the Funko LLC Agreement, with rights to receive priority distributions from the Ultimate Parent until the holders thereof have received aggregate distributions equal to any unpaid amounts plus an annual preferred return of 11% for the first 90 day period after issuance, 13% for the next 90 day period and 15% thereafter, accruing daily and compounding annually.

Funko LLC Agreement ” means the limited liability operating agreement of the Funko Acquisition Holdings, L.L.C., dated as of October 30, 2015.

Funko Sellers ” means the sellers under the Acquisition Agreement.

Funko Transaction Costs ” means those certain fees and expense reimbursements to the Permitted Holders in an aggregate amount not to exceed $20,200,000.

Funko UK ” means Funko UK, Ltd., a private limited company formed under the laws of England and Wales, which is a wholly-owned Subsidiary of Funko.

Funko UK Lease Guarantees ” means the guarantees provided by Funko to secure the payment obligations of Funko UK under any real property leases.

GAAP ” means generally accepted accounting principles in effect from time to time in the United States, and as applied on a consistent basis in all subsequent periods; provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements; provided , further , that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in this Agreement, the Agents and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the applicable covenants shall be calculated as if no such change in GAAP has occurred.

Governing Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture agreement, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

 

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Governmental Acts ” has the meaning specified therefor in Section 3.09.

Governmental Authority ” means any nation or government, any Federal, state, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency, authority, division or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Guaranteed Obligations ” has the meaning specified therefor in Section 11.01.

Guarantor ” has the meaning specified therefor in the preamble hereto.

Guaranty ” means (a) the guaranty of each Guarantor party hereto contained in ARTICLE XI hereof and (b) each other guaranty, in form and substance reasonably satisfactory to the Collateral Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders guaranteeing all or part of the Obligations.

Hazardous Material ” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or risk to human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.

Hedge Liabilities ” means the liabilities of the Borrowers under any Hedge Agreement as calculated on a marked-to-market basis in accordance with GAAP.

Hedging Agreement ” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing

 

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agreements or arrangements, and (without limiting the generality of any of the foregoing) specifically including any foreign exchange transaction, including spot and forward foreign currency purchases and sales, listed or over-the-counter options on foreign currencies, non-deliverable forwards and options, foreign currency swap agreements, and currency exchange rate price hedging arrangements), and any confirmation executed in connection with any such agreement or arrangement.

Highest Lawful Rate ” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

Holdout Lender ” has the meaning specified therefor in Section 12.02(b).

In-Transit Inventory ” shall mean Inventory of a Borrower that is in transit.

Immaterial Subsidiary ” means, as of any date, any Subsidiary whose total assets, as of that date, are less than $25,000, provided that total assets of all Immaterial Subsidiaries shall not, in the aggregate, exceed $100,000 as of any date.

Indebtedness ” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables or other current accounts payable incurred in the ordinary course of such Person’s and paid in accordance with historical practices of the Loan Parties (but including earnouts or similar obligations); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all Hedge Liabilities; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations relating to obligations described in clauses (a) through (h) of this definition; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer, except to the extent that such Person is not liable for such Indebtedness.

Indemnified Matters ” has the meaning specified therefor in Section 12.16.

 

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Indemnitees ” has the meaning specified therefor in Section 12.16.

Initial Term Loan ” has the meaning specified therefor in Section 2.01(a)(ii).

Insolvency Proceeding ” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

Installment Waiver Fee ” has the meaning specified therefor in Section 2.03(b)(ii).

Intercompany Subordination Agreement ” means an Intercompany Subordination Agreement made by the Loan Parties in favor of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Agents.

Interest Payment Date ” means (a) as to any Reference Rate Loan denominated in Dollars, the first day of each month, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, each day which is three months after the first day of such Interest Period and the last day of such Interest Period and (d) as to any mandatory prepayment required pursuant to this Agreement, the date of such prepayment.

Interest Period ” means as to any LIBOR Rate Loan made to the Borrowers, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Rate Loan and ending on the date one, two or three months thereafter, as selected by the Administrative Borrower; provided that:

(i)    if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which case such Interest Period shall end on the preceding Business Day;

(ii)    any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii)    the Borrowers may not elect an Interest Period for any Loan which would extend beyond the Final Maturity Date.

Interest Rate Hedging Agreements ” means each interest rate swap or similar Hedging Agreement entered into by a Loan Party with any Agent, Lender or Affiliate thereof with respect to the interest rates on the Loans or any other Permitted Indebtedness permitted under this Agreement.

Interest Rate Hedging Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by Borrowers to any Agent or Lender or its Affiliates pursuant to or evidenced by the Interest Rate Hedging Agreements and irrespective of

 

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whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that Borrowers, as applicable, are obligated to reimburse to Agents, any Lender or any Affiliate thereof as a result of Administrative Agent, such Lender or such Affiliate purchasing participations or executing indemnities or reimbursement obligations with respect to the interest rate swap provided to such Person pursuant to the Interest Rate Hedging Agreements. Notwithstanding any of the foregoing, Interest Rate Hedging Obligations shall not include any Excluded Hedge Liabilities.

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

Inventory ” means, with respect to any Person, all inventory (as that term is defined in the Uniform Commercial Code) and all goods and merchandise of such Person, including, without limitation, all raw materials, work-in-process, packaging, supplies, materials and finished goods of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account Receivable or cash.

Investment ” means, with respect to any Person, (x) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts Receivable arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (y) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (z) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP.

ISP98 Rules ” has the meaning specified therefor in Section 3.02(b).

Joinder Agreement ” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).

L/C Fee Rate ” means 2.50% per annum.

L/C  Issuer ” means PNC or such other bank as the Administrative Agent may select in its Permitted Discretion.

Law(s) ” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.

 

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Lease ” means any lease of real property to which any Loan Party or any of its Subsidiaries is a party as lessor or lessee.

Lender ” has the meaning specified therefor in the preamble hereto.

Lender-Provided Hedge Agreement ” means a Hedging Agreement which is provided by any Lender, Agent or any affiliate thereof. Except to the extent of any Excluded Hedge Liabilities, the Hedge Liabilities of the Borrowers to the provider of any Lender-Provided Hedge Agreement shall be “Obligations” hereunder, guaranteed obligations under any Guaranty and secured obligations under any Security Agreement and otherwise treated as Obligations for purposes of each of the Loan Documents. The Liens securing the Hedge Liabilities shall be pari passu with the Liens securing all other Obligations under this Agreement and the Loan Documents.

Letter of Credit Application ” has the meaning specified therefor in Section 3.02(a).

Letter of Credit Borrowing ” has the meaning specified therefor in Section 3.04.

Letter of Credit Fees ” has the meaning specified therefor in Section 2.06(c).

Letter of Credit Guaranty ” means one or more guaranties by the Administrative Agent in favor of the L/C Issuer guaranteeing or relating to the obligations of the Borrower to the L/C Issuer under a reimbursement agreement, Letter of Credit Application or other like document in respect of any Letter of Credit.

Letter of Credit Obligations ” means, at any time and without duplication, the sum of (a) Reimbursement Obligations with respect to all Letters of Credit at such time, plus (b) the Maximum Undrawn Amount with respect to all Letters of Credit, plus (c) all amounts for which Administrative Agent may be liable to the L/C Issuer pursuant to any Letter of Credit Guaranty with respect to any Letter of Credit.

Letter of Credit Sublimit ” means $3,000,000.

Letters of Credit ” has the meaning specified therefor in Section 3.01.

LIBOR ” means for each LIBOR Rate Loan made to the Borrowers, with respect to each day during the applicable Interest Period, the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by Administrative Agent as an authorized information vendor for the purpose of displaying rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market (a “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such LIBOR Rate Loan and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any LIBOR Alternate Source, a comparable replacement rate determined by Agent at such time (which determination shall be conclusive absent manifest error; provided , that, (i) with respect to the Term Loan, at no time shall LIBOR be less than 1.00% and (ii) with respect to the Revolving Loans, at no time shall LIBOR be less than 0%.

 

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LIBOR Notice ” means a written notice substantially in the form of Exhibit D.

LIBOR Option ” has the meaning specified therefor in Section 2.07(a).

LIBOR Rate ” means, for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by the Administrative Agent (rounded upwards if necessary, to the next 1/100% of 1%) by dividing (i) applicable LIBOR for such Interest Period by (ii) 1.00 minus the Reserve Percentage; provided that such LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage; provided, further, that from and after the Amendment No. 1 Effective Date, the LIBOR Rate with respect to Revolving Loans shall be the Daily LIBOR Rate.

LIBOR Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the LIBOR Rate.

Lien ” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement intended as, or having the effect of, security.

Loan ” means the Term Loan or any Revolving Loan made by an Agent or a Lender to the Borrowers pursuant to ARTICLE II hereof.

Loan Account ” means an account maintained hereunder by the Administrative Agent on its books of account at the Payment Office, and with respect to the Borrowers, in which the Borrowers will be charged with all Loans made to, and all other Obligations incurred by, the Borrowers.

Loan Document ” means this Agreement, the Security Agreement, any other Security Documents, any Guaranty, any Note, the Intercompany Subordination Agreement, the Acon Notes Subordination Agreement, Amendment No.  5, any Joinder Agreement, the Fifth Amendment Flow of Funds Agreement, the Flow of Funds Agreement, any Letter of Credit Application, any Mortgage, the Fee Letter, the Collateral Assignment, any Bank Product Agreement, and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan, any Letter of Credit Obligation or any other Obligation; provided, however, that for purposes of Section 9.1 hereof, no Interest Rate Hedging Agreement or other Bank Product Agreement shall constitute a Loan Document.

Loan Party ” means any Borrower and any Guarantor.

“Loungefly” means Loungefly, LLC, a California limited liability company.

 

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“Loungefly Acquisition” means the acquisition by Funko, LLC of all of the equity interests of Loungefly pursuant to the Loungefly SPA.

“Loungefly SPA” means that certain Securities Purchase Agreement, dated as of May  4, 2017, by and among Funko, LLC, Loungefly, Inc. and the shareholders of Loungefly, Inc. party thereto, as in effect on the Amendment No.  5 Effective Date.

Management Agreement ” means the professional services agreement dated as of the date hereof by and among ACON Equity Management, L.L.C., a Delaware limited liability company, and Funko, LLC, a Washington limited liability company.

Material Adverse Effect ” means a material adverse effect on any of (a) the operations, business, assets, properties, financial condition or operating results of the Loan Parties taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to fully and timely perform any of their obligations under any Loan Document to which they are parties, (c) the rights and remedies of any Agent or any Lender under any Loan Document, or (d) the validity, perfection or priority of a Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any of the Collateral; provided that, notwithstanding the foregoing, (i) the lack of perfection or priority of any Liens granted to the Collateral Agent solely in respect of Collateral with an aggregate value not in excess of $250,000 (valued at fair market value on Collateral other than cash) shall not be deemed a Material Adverse Effect and (ii) the determination of the existence of any Material Adverse Effect shall not give effect to any consequences of actions of the Agents or any Lender under the Loan Documents.

Material Contract ” means, with respect to any Person, each contract or agreement to which such Person is a party, in respect of which a breach or termination could reasonably be expected to have a Material Adverse Effect.

Maximum Face Amount ” means, with respect to any outstanding Letter of Credit, the face amount of such Letter of Credit including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective, as such face amount or increases are amended from time to time.

Maximum Revolving Loan Amount ” means $ 80,000,000 100,000,000 .

Maximum Undrawn Amount ” means, with respect to any outstanding Letter of Credit, the amount of such Letter of Credit that is or may become available to be drawn, including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective.

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgage ” means a mortgage, deed of trust or deed to secure debt, in form and substance reasonably satisfactory to the Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and the Lenders, securing the Obligations and delivered to the Collateral Agent.

 

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Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its Subsidiaries has contributed to, or has been obligated to contribute, at any time during the preceding six (6) years, excluding any Non-U.S. Plan.

Negotiable Document ” shall mean a Document that is “negotiable” within the meaning of Article 7 of the Uniform Commercial Code.

Net Amount of Eligible Accounts Receivable ” means the aggregate unpaid invoice amount of Eligible Accounts Receivable less, without duplication, sales, excise or similar taxes, returns, discounts, chargebacks, claims, advance payments, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect to such Eligible Accounts Receivable.

Net Cash Proceeds ” means, (a) with respect to any Disposition by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Disposition (other than Indebtedness under this Agreement), (ii) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (iii) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (iv) net income taxes to be paid in connection with such Disposition (after taking into account any tax credits or deductions and any tax sharing arrangements) and (b) with respect to the issuance or incurrence of any Indebtedness by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary in connection therewith, after deducting therefrom only (i) reasonable fees (excluding management fees paid to Permitted Holder) and expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (ii) transfer taxes paid by such Person or such Subsidiary in connection therewith and (iii) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements); in each case of clause (a) and (b) to the extent, but only to the extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

Net Liquidation Percentage ” shall mean, as of any date of determination, the percentage of the book value of the Borrowers’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be as determined from time to time by an appraisal company selected by the Agents.

New Facility ” has the meaning specified therefor in Section 7.01(o).

 

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New Lending Office ” has the meaning specified therefor in Section 2.09(b)(i).

Non-Qualifying Party ” means any Borrower or any Guarantor that on the Eligibility Date fails for any reason to qualify as an Eligible Contract Participant.

Non-U.S. Lender ” has the meaning specified therefor in Section 2.09(d).

Note ” means each promissory note, if any, issued by the Borrowers to a Lender in accordance with the provisions of this Agreement.

Notice of Borrowing ” has the meaning specified therefor in Section 2.02(a).

Obligations ” means all present and future indebtedness, obligations, and liabilities of each Loan Party to the Agents and the Lenders, the L/C Issuer and the Bank Product Providers arising under or in connection with any of the Loan Documents, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (i) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (ii) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its Permitted Discretion) may elect to pay or advance on behalf of such Person. Notwithstanding any of the foregoing, Obligations shall not include any Excluded Hedge Liabilities.

OFAC Sanctions Programs ” means the laws, regulations and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as it has been or shall thereafter be renewed, extended, amended, or replaced, and the list of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended from time to time.

Operating Lease Obligations ” means all obligations for the payment of rent for any real or personal property under leases or agreements to lease, other than Capitalized Lease Obligations.

Order ” has the meaning specified therefor in Section 3.10.

Other Taxes ” has the meaning specified therefor in Section 2.09(b).

Paid in Full ”, “ Pay in Full ” or “ Payment in Full ” means, with respect to any Obligations, (i) the payment in full in cash (or other consideration acceptable to the recipient thereof) of all such Obligations (other than (x) contingent indemnification obligations to the extent no claim giving rise thereto has been asserted and (y) Hedge Liabilities and Bank Product Obligations that, at the time of determination, are allowed by the Person to whom such Obligations are owing to remain outstanding), (ii) the termination or expiration of all of the Revolving Credit Commitments and (iii) in connection with the termination or expiration of all

 

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of the Revolving Credit Commitments, either (x) the cancellation and return to the Administrative Agent of all Letters of Credit or (y) the Cash Collateralization (or the delivery of a back-to-back letter of credit reasonably acceptable to the Administrative Agent) of all Letters of Credit.

Parent ” has the meaning specified therefor in the preamble hereto.

Participant Register ” has the meaning specified therefor in Section 12.07(g).

Participation Commitment ” means each Revolving Loan Lender’s obligation to buy a participation of the Letters of Credit issued hereunder.

Participation Revolving Loan ” has the meaning specified therefor in Section 3.04(c) hereof.

Payment Office ” means Administrative Agent’s office located at Two Tower Center, East Brunswick, New Jersey 08816 or at such other office or offices of Administrative Agent as may be designated in writing from time to time by the Administrative Agent to the Collateral Agent and the Borrower.

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

Perfection Certificate ” means a certificate in form and substance reasonably satisfactory to the Collateral Agent providing information with respect to the property of each Loan Party.

Permitted Acquisition ” means any Acquisition so long as:

(a)    No Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition and the proposed Acquisition is consensual;

(b)     except in connection with the Loungefly Acquisition, the Administrative Borrower has provided the Agents with written notice of the proposed Acquisition at least ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than ten (10) Business Days prior to the anticipated closing date of the proposed Acquisition, copies of then available drafts of the acquisition agreement and other material documents relative to the proposed Acquisition (provided that, promptly following the closing and consummation of such Acquisition, Administrative Borrower shall provide Agents with copies of the final executed acquisition agreement and related material documents);

(c)    the Administrative Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Acquisition, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the

 

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relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents) created by adding the historical combined financial statements of the Ultimate Parent and its Subsidiaries (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, the Ultimate Parent and its Subsidiaries (i) would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are projected to be in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended one year after the proposed date of consummation of such proposed Acquisition;

(d)    [intentionally omitted];

(e)    except in connection with the Underground Toys Acquisition, the Person to be acquired (or the business represented by the assets to be acquired) is engaged in a business principally located in the United States and permitted to be engaged in by the Loan Parties pursuant to Section 7.02(d) and is joined as a Loan Party pursuant to Section 7.01(b) within the time periods set forth therein;

(f)    the board of directors (or other comparable governing body) of such Person and the seller of such Person or assets shall have duly approved the proposed Acquisition;

(g)    after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Borrowers shall have (A) Availability on the date of such proposed Acquisition after giving effect thereto of at least $10,000,000, and (B) projected pro forma Availability for the twelve month period after the date of such proposed Acquisition of at least $10,000,000;

(h)    the purchase consideration payable (including without limitation, earnout or similar obligations, but excluding (i) consideration payable in shares constituting Qualified Equity Interests of Ultimate Parent, and (ii) any amount funded with Available Equity Proceeds or paid by the issuance of Qualified Equity Interests) in respect of all Permitted Acquisitions shall not exceed $25,000,000 in the aggregate; provided , that the purchase consideration payable in connection with the Underground Toys Acquisition (including, without limitation, the Underground Toys Earnout) and the Loungefly Acquisition shall not count toward the aforementioned $25,000,000 limitation; and

(i)     except in connection with the Loungefly Acquisition, after giving pro forma effect to such proposed Acquisition (and any borrowings of Revolving Loans to fund such proposed Acquisition), the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00.

Permitted Cure Stock ” has the meaning specified therefor in the last paragraph of Section 9.01.

 

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Permitted Discretion ” means, as to any Agent or Lender, as the case may be, a determination made in good faith and in the exercise of commercially reasonable (from the perspective of a secured asset-based lender) business judgment exercised in accordance with generally applicable practices of such Agent or Lender for transactions of this type.

Permitted Funko Earnout Payments ” means payments (including, without limitation, any partial payments thereof) made by the Loan Parties in relation to Funko Earnout, which payments shall be limited as follows: (a) in the case of the Funko 2015 Earnout, following the payment in cash by the Ultimate Parent of the first $15,000,000 of such Funko 2015 Earnout with the cash proceeds of new equity issued by the Ultimate Parent, the Loan Parties may provide funds for the payment of any remaining obligations in respect of the Funko 2015 Earnout with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for the period from the Effective Date through the end of calendar month recently ended prior to the date of the payment of the Funko 2015 Earnout and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2015 Earnout, Availability would be less than $15,000,000, (b) in the case of the Funko 2016 Earnout, the Loan Parties may provide funds for the payment thereof with the cash proceeds of the following: (i)  first , subject to sufficient cash being available for such purpose as determined by the Board of Directors of the Ultimate Parent in good faith, Excess Cash Flow of Ultimate Parent and its Subsidiaries for Fiscal Year 2016 (calculated after giving effect to any Excess Cash Flow mandatory prepayments that are due to the Lenders for Fiscal Year 2016 pursuant to Section 2.05(c)) and (ii)  second , from the proceeds of Revolving Loans; provided , however , that in no event shall the proceeds of the Revolving Loans be used for such purpose if, after giving effect to the payment of the Funko 2016 Earnout, Availability would be less than $15,000,000 and (c) any additional amounts in respect of the Funko 2015 Earnout or the Funko 2016 Earnout that are paid (i) through the issuance of Funko Earnout Preferred Equity, (ii) with the cash proceeds of new equity issued by the Ultimate Parent, or (iii) with the proceeds of the Acon Subordinated Indebtedness.

Permitted Holder ” means ACON Equity Management, L.L.C., a Delaware limited liability company, and any other entity owned or controlled by one or more of the managing members of ACON Equity Management, L.L.C. on the Effective Date (“ ACON ”), which are Affiliates and Related Funds that are equity funds to the extent such Persons are controlled, directly or indirectly, by ACON by way of ownership or general partner or managing member relationship.

Permitted Indebtedness ” means:

(a)    any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;

(b)    any other Indebtedness listed on Schedule 7.02(b), and the extension of maturity, refinancing or modification of the terms thereof; provided , however , that (i) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties in any material respect and the Lenders than the terms of the Indebtedness being

 

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extended, refinanced or modified and (ii) after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification, plus any accrued interest, prepayment premium and refinancing costs, and the amount of unfunded commitments with respect thereto;

(c)    Indebtedness evidenced by Capitalized Lease Obligations entered into in order to finance Capital Expenditures, which Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under this clause (c) and clause (d) of this definition, does not exceed $2,000,000 at any time outstanding;

(d)    Indebtedness permitted by clause (e) of the definition of “Permitted Lien”;

(e)    Indebtedness permitted under Section 7.02(e);

(f)    Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds;

(g)    Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year; and

(h)    the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party’s operations and not for speculative purposes;

(i)    Subordinated Indebtedness (other than the Acon Subordinated Indebtedness) in an aggregate amount not exceeding $5,000,000 at any time outstanding and the Acon Subordinated Indebtedness;

(j)    Acquired Indebtedness in an amount not to exceed $5,000,000 outstanding at any one time;

(k)    Earnout and other similar contingent obligations incurred to a seller in a Permitted Acquisition in an aggregate amount (calculated based on the maximum amount potentially payable with respect to such obligations) outstanding not to exceed at any time the lesser of (i) $5,000,000 for any Permitted Acquisition and (ii) 20% of the cash purchase price of such Permitted Acquisition;

(l)    the Funko Earnouts;

(m)    the Funko Earnout Preferred Equity ; and

 

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(n) other unsecured Indebtedness in an aggregate amount at any one time not to exceed $1,000,000 . ; and

(o) Indebtedness incurred at any time on or after January 1, 2018 to and including December 31, 2018 (or at any other time subject to the written consent of Cerberus) in connection with Foreign Credit Facility Arrangements in an aggregate principal amount not to exceed $20,000,000 at any time outstanding.

Permitted Intercompany Advances ” means Investments made by (a) a Loan Party into another Loan Party (other than the Ultimate Parent), (b) the Funko UK Lease Guaranties, (c) a non-Loan Party to another non-Loan Party, (d) a non-Loan Party into a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, and (e) a Loan Party into a non-Loan Party Subsidiary so long as (i) the aggregate outstanding amount of all such Investments made by the Loan Parties following the Effective Date does not exceed (x) $5,000,000 in the aggregate with respect to Investments made into Funko UK and its Subsidiaries and (y) $250,000 in the aggregate with respect to Investments made into all other non-Loan Party Subsidiaries, (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment and (iii) after giving pro forma effect to such proposed intercompany Investment (and any borrowings of Revolving Loans to fund such proposed intercompany Investment), the Borrowers shall have Availability on the date of such proposed intercompany Investment assuming that such intercompany Investment (and any Revolving Loans drawn to fund such intercompany Investment) had been made on the first day of such 30 day period), of at least $10,000,000. Notwithstanding anything to the contrary in this Agreement, in the case of any such Investment described in clause (e) above consisting of a guarantee or other similar Contingent Obligation issued by any Loan Party to support any Indebtedness or other obligations or liabilities of a non-Loan Party, (i) such guarantee or other Contingent Obligation must be unsecured and (ii) the full amount for which such Loan Party is potentially liable under such guarantee or other Contingent Obligation shall be counted against the limitation set forth above for all Investments under clause (e) above.

Permitted Investments ” means:

(a) Investments in cash and Cash Equivalents;

(b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;

(c) advances made in connection with purchases of goods or services in the ordinary course of business;

(d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;

 

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(e) Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;

(f) Permitted Intercompany Advances and Hedging Agreements permitted pursuant to clause (h) of the definition of Permitted Indebtedness;

(g) extensions of trade credit in the ordinary course of business;

(h) Guaranteed Obligations described in Section 11.01 ;

(i) loans and advances to employees, officers and directors of any Loan Party in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Loan Parties not to exceed $100,000 at any one time outstanding;

(j) non-cash loans and advances by Ultimate Parent or any of its Subsidiaries to employees, officers and directors of any of Ultimate Parent and its Subsidiaries, so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in the Ultimate Parent, the proceeds of which are contributed to the capital of the Parent;

(k) Investments in assets useful in the business of the Borrowers and their Subsidiaries made by a Borrower or any of its Subsidiaries, whether in accordance with Section 2.05(c)(viii) or as a result of the making of Capital Expenditures otherwise permitted hereunder.

(l) [reserved];

(m) [reserved];

(n) Permitted Acquisitions;

(o) [reserved]; and

(p) additional Investments in an aggregate amount not to exceed $3,000,000 during the term of this Agreement (in each case, plus any Available Equity Proceeds), so long as (x) after giving pro forma effect to such proposed Investment the Borrowers shall have (A) Availability on the date of such proposed Investment (assuming that such Investment (and any Revolving Loans drawn to fund such Investment) had been made on the first day of such 30 day period), of at least $10,000,000 and (B) projected pro forma Availability for the twelve month period after the date of such proposed Investment, of at least $10,000,000 and (y) Borrower has provided the Agents, not later than three (3) Business Days prior to the anticipated closing date of the proposed Investment, with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including, if applicable, pro forma adjustments arising out of events which are directly attributable to such proposed Investment, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Administrative Borrower and the Agents), (1) the Ultimate Parent and its Subsidiaries would have been in compliance with the financial covenants in Section 7.03 of this Agreement for the twelve month period ended

 

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immediately prior to the proposed date of consummation of such proposed Investment and (2) the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries shall not exceed 2.50:1.00; provided that the foregoing clauses (x) and (y) shall not be applicable to Investments pursuant to this clause (p) in an aggregate amount not to exceed $1,000,000 during any Fiscal Year.

Permitted Liens ” means:

(a) Liens securing the Obligations;

(b) Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c);

(c) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 45 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

(d) Liens described on Schedule 7.02(a), provided that (i) no such Lien shall at any time be extended to cover any additional property not subject thereto on the Effective Date and (ii) the principal amount of the Indebtedness secured by such Liens shall not be extended, renewed, refunded or refinanced other than in accordance with clause (b) of the definition of Permitted Indebtedness;

(e) purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition of such equipment; provided , however , that (A) no such Lien shall extend to or cover any other property of any Loan Party or any of its Subsidiaries and (B) the aggregate principal amount of Indebtedness secured by (i) any or all such Liens and (ii) all Indebtedness permitted by clause (c) of Permitted Indebtedness shall not exceed at any one time outstanding $2,000,000;

(f) deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;

(g) easements, zoning restrictions, rights of way, and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business;

(h) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased

 

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from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

(i) Liens on real property or equipment securing Indebtedness permitted by subsection (c) of the definition of Permitted Indebtedness;

(j) the title and interest of a lessor, sublessor, licensee or licensor in and to personal property leased or subleased (other than through a capital lease) or licensed, in each case extending only to such personal property;

(k) non-exclusive licenses or sublicenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;

(l) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(k);

(m) (i) contractual rights of setoff in favor of vendors and customers arising in the ordinary course of business, (ii) rights of setoff or bankers’ liens upon deposits of cash in favor of banks, securities intermediaries or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts or security accounts in the ordinary course of business and (iii) Liens in favor of collecting banks arising under Section 4-208 of the UCC;

(n) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;

(o) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;

(p) Liens solely on any cash earnest money deposits made by Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, provided that, the aggregate amount of all such deposits outstanding shall not exceed 20% of the purchase price for the related Permitted Acquisition at any time;

(q) Liens assumed by Borrower or its Subsidiaries in connection with a Permitted Acquisition that secures Acquired Indebtedness, provided that, the Liens permitted pursuant to this clause (q) shall not include (x) any Liens on any Accounts Receivable or Inventory (or the proceeds thereof) of any Loan Party or (y) any “blanket liens” on all or substantially all of the assets of any Loan Party;

(r) The filing of UCC financing statements solely as a precautionary measure in connection with an operating lease, in each case, relating solely to the property that is the subject of such operating lease;

 

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(s) Liens (i) arising out of any consignments of goods belonging to third-parties to Borrowers as consignee or out of any consignments of goods belonging to Borrowers consignor to third-parties entered into by the Borrowers or any of their Subsidiaries in the ordinary course of business, or (ii) incurred by the Borrowers or their Subsidiaries arising under Section 2-505 of the UCC;

(t) Liens applicable to the assets of any Subsidiary of the Borrowers (excluding any Loan Party) that is not organized under the laws of any jurisdiction of the United States, in each case, so long as such Liens secure Indebtedness or other obligations otherwise permitted to be incurred pursuant to the Loan Documents; and

(u) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000.

Permitted Management Fees ” means (a) management or consulting fees payable pursuant to the terms of the Management Agreement in an aggregate amount not to exceed the lesser of (x) $2,000,000 in any Fiscal Year and (y) two percent of Consolidated EBITDA with respect to any Fiscal Year, the payment of which is subordinated to the Obligations on terms and conditions specified in the Management Agreement as in effect on the Effective Date and (b) the reimbursement of third-party out-of-pocket expenses incurred in connection with the Management Agreement.

Person ” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.

Plan ” means any Employee Plan or Multiemployer Plan.

PNC ” means PNC Bank, National Association.

Post-Default Rate ” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.00%.

Post-Term Cash Collateral ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit ” has the meaning specified therefor in Section 3.02(d) hereof.

Post-Term Letter of Credit Obligations ” has the meaning specified therefor in Section 3.02(d) hereof.

Private Placement ” has the meaning specified therefor in the definition of “Change of Control” in Section 1.01 hereof.

 

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Pro Forma EBITDA ” means, with respect to any assets acquired in a Permitted Acquisition, the amount of such assets’ Consolidated EBITDA for the most recent trailing twelve (12) month period ending as of the last day of the month preceding the closing of the respective Permitted Acquisition for which financial statements are available, adjusted as provided herein. Such amount shall be determined by the Borrowers and shall be subject to the consent of, (x) if, a quality of earnings report is prepared in accordance with generally accepted standards by a nationally recognized certified public accounting firm, the Collateral Agent or (y) if there is no such quality of earnings report, the Agents acting in good faith (such consent not to be unreasonably withheld or delayed), based upon and derived from financial information delivered to the Agents prior to the consummation of such Permitted Acquisition (Pro Forma EBITDA for such assets acquired in such Permitted Acquisition as calculated and consented to as of such closing being referred to as the “ Initial Pro Forma EBITDA ”). After the closing of such Permitted Acquisition and unless otherwise agreed by the Agents and the Borrowers, Pro Forma EBITDA with respect thereto shall equal Initial Pro Forma EBITDA multiplied by a fraction the numerator of which is 365 minus the number of days after the closing of the Permitted Acquisition included in any period for which financial statements have been delivered and the denominator of which is 365.

For purposes of demonstration only, assuming that a Permitted Acquisition closes on August 1, 2016 and Initial Pro Forma EBITDA has been determined to be $10,000,000, Pro Forma EBITDA with respect to the assets acquired in such Permitted Acquisition for the fiscal period ending September 30, 2016 (assuming financial statements for the period ending September 30, 2016 have been delivered) shall equal:

$10,000,000 x (365 - 60*) / 365 = $ 8,350,000

*the number of days elapsed between August 1, 2016 and September 30, 2016.)

Pro Rata Share ” means:

(a) with respect to a Lender’s obligation to (x) make Revolving Loans and receive payments of interest, fees, and principal with respect thereto and (y) participate in Letters of Credit and Reimbursement Obligations with respect to Letters of Credit, to reimburse the L/C Issuer with respect to Letters of Credit, and right to receive payments of fees with respect thereto, the percentage obtained by dividing (A) such Lender’s Revolving Credit Commitment by (B) the Total Revolving Credit Commitment; provided that if the Total Revolving Credit Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s Revolving Loans and its interest in the Letter of Credit Obligations and the denominator shall be the aggregate unpaid principal amount of all Revolving Loans and Letter of Credit Obligations; provided , further , however , that if all of the Revolving Loans have been Paid in Full and Letters of Credit remain outstanding, Pro Rata Share for purposes of clause (y) above shall be determined as if the Revolving Credit Commitments had not been terminated or reduced to zero and based upon the Revolving Credit Commitments as they existed immediately prior to their termination or reduction to zero and also provided in addition that, for purposes of this paragraph (a), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder,

 

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(b) with respect to a Lender’s obligation to make the Term Loan B A-1 and receive payments of interest, fees, and principal with respect to the Term Loan B A-1 , the percentage obtained by dividing (A) such Lender’s Term Loan B A-1 Commitment, by (B) the Total Term Loan B Commitment,

(c) with respect to all other matters (including, without limitation, the indemnification obligations arising under Section 10.05 and the definition of Required Lenders), the percentage obtained by dividing (i) the sum of such Lender’s Revolving Credit Commitment and the unpaid principal amount of such Lender’s portion of the Term Loans by (ii) the sum of the Total Revolving Credit Commitment and the aggregate unpaid principal amount of the Term Loans, provided that if such Lender’s Revolving Credit Commitment shall have been reduced to zero, such Lender’s Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of such Lender’s Revolving Loans (including Agent Advances) and its interest in the Letter of Credit Obligations and if the Total Revolving Credit Commitment shall have been reduced to zero, the Total Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances) and Letter of Credit Obligations and also provided in addition that, for purposes of this paragraph (e), each Lender’s Revolving Credit Commitment and the Total Revolving Credit Commitment shall at all times be deemed to be the maximum amount thereof provided for hereunder.

Published Rate ” shall mean the rate of interest published each Business Day in the Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then as published in another publication selected by the Administrative Agent).

Qualified Cash ” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of a Loan Party or any Subsidiary of a Loan Party that is held in a deposit account subject to a Cash Management Agreement in favor of the Collateral Agent, for the benefit of the Lenders or with respect to which any Agent is the depositary or securities intermediary and that is on deposit with banks, or in securities accounts with securities intermediaries, or any combination thereof.

Qualified ECP Loan Party ” means each Borrower or Guarantor that on the Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or other entity other than a “commodity pool” as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000 or (b) an Eligible Contract Participant that can cause another Person to qualify as an Eligible Contract Participant on the Eligibility Date under Section 1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a “letter of credit or keepwell, support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the CEA.

Qualified Equity Interests ” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

Qualified Initial Public Offering ” has the meaning specified therefor in the definition of “Change of Control” in Section 1.01 hereof.

 

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Real Property Deliverables ” means each of the following agreements, instruments and other documents in respect of each Facility (to the extent requested by the Collateral Agent and relevant to the applicable jurisdiction):

(a) a Mortgage duly executed by the applicable Loan Party,

(b) evidence of the recording of each such Mortgage in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Collateral Agent and the Lenders thereunder;

(c) a Title Insurance Policy or bring-down of the existing Title Insurance Policy with respect to each Mortgage, dated as of the Effective Date;

(d) a current ALTA survey and a surveyor’s certificate, in form and substance reasonably satisfactory to the Collateral Agent, certified to the Collateral Agent and to the issuer of the Title Insurance Policy with respect thereto by a licensed professional surveyor reasonably satisfactory to the Collateral Agent;

(e) a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility’s compliance with all applicable building codes, fire codes, other health and safety rules and regulations, parking, density and height requirements and other building and zoning laws;

(f) an opinion of counsel, reasonably satisfactory to the Collateral Agent, in the state where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Collateral Agent may reasonably request;

(g) Phase I Environmental Site Assessments with respect to such real property, certified to the Collateral Agent by a company reasonably satisfactory to the Collateral Agent;

(h) flood insurance for such Facility if all or a portion of such Facility is located in an area designated by the Federal Emergency Management Agency as an area having special flood hazards (including, without limitation, those areas designated as Zone A or Zone V), and in which flood insurance has been made available under the U.S. National Flood Insurance Program, in an amount equal to the full replacement cost of the buildings, fixtures and personalty located on such real property or such other amount as may be agreed to by Collateral Agent in writing; and

(i) such other agreements, instruments and other documents (including guarantees and opinions of counsel) as the Collateral Agent may reasonably require.

Recipient ” has the meaning specified therefor in Section 2.09(b)(ii).

Reference Bank ” means PNC, its successors or any other commercial bank designated by the Administrative Agent to the Administrative Borrower from time to time.

 

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Reference Rate ” means, on any day, the greatest of (i) the rate of interest publicly announced by the Reference Bank in New York, New York from time to time as its reference rate, base commercial lending rate, which rate may not be the lowest rate then being charged to commercial borrowers by the Reference Bank, (ii) the Federal Funds Open Rate plus 0.50% per annum, (iii) the Daily LIBOR Rate plus 1.00% per annum, so long as a Daily LIBOR Rate is offered, ascertainable and not unlawful, and (iv) 3.00% per annum. The reference rate, base rate or prime rate is determined from time to time by the Reference Bank as a means of pricing some loans to its borrowers and neither is tied to any external rate of interest or index nor necessarily reflects the lowest rate of interest actually charged by the Reference Bank to any particular class or category of customers. Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.

Reference Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.

Register ” has the meaning specified therefor in Section 12.07(d).

Registered Loans ” has the meaning specified therefor in Section 12.07(d).

Regulation T ,” “ Regulation U ” and “ Regulation X ” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.

Reimbursement Obligations ” has the meaning specified therefor in Section 3.04(b).

Reinvestment Eligible Funds ” has the meaning specified therefor in Section 2.05(c)(viii).

Related Fund ” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person.

Related Party Assignment ” has the meaning specified therefor in Section 12.07(b).

Related Party Register ” has the meaning specified therefor in Section 12.07(d).

Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

Remedial Action ” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.

 

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Replacement Lender ” has the meaning specified therefore in Section 12.02(b).

Reportable Compliance Event ” shall mean that any Covered Entity (x) becomes a Sanctioned Person, or (y) is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or (z) has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual violation of any Anti-Terrorism Law in a manner (with respect to any violation under this clause (z)) that could reasonably be expected to have a Material Adverse Effect.

Reportable Event ” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30 day notice to the PBGC under the regulations promulgated under such Section).

Required Lenders ” means Lenders whose Pro Rata Shares (calculated in accordance with clause (e) of the definition thereof) aggregate at least 51%.

Required Revolving Loan Lenders ” means Revolving Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (a) of the definition thereof) aggregate at least 51%.

Requirements of Law ” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Percentage ” means as of any day the maximum percentage in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).

Reserves ” means, as of any date of determination, such amounts (including, without limitation, the amount of any Bank Product Reserves, any Exchange Risk Reserve, any Dilution Reserve, any Royalty Reserve and any reserves for co-op advertising expenses and discounts for advertising expenses to the extent such expenses and discounts are not otherwise taken into account in determining the net amount of Eligible Accounts Receivable) as the Administrative Agent may from time to time establish in its good faith exercise of its Permitted Discretion (a) to reflect events, conditions, contingencies or risks which (i) adversely affect any Collateral or either Agent’s access thereto, or (ii) adversely affect the priority, perfection or

 

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enforceability of any of the security interest of the Agents or any Lender in the Collateral, or (b) in respect of any state of facts which the Administrative Agent reasonably determines to constitute a Default or an Event of Default. The amount of any Reserve established by the Administrative Agent shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserve as reasonably determined by the Administrative Agent. The Administrative Agent shall provide not less than three (3) days’ notice to the Administrative Borrower and the Collateral Agent of any new categories of Reserves that may be established after the date hereof and will be available to consult with the Administrative Borrower in connection with the basis for such new categories of Reserves.

Revolving Credit Commitment ” means with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers pursuant to its Revolving Credit Commitment, as applicable, in an aggregate amount pursuant to all such commitments of such Lender not to exceed the amount set forth opposite such Lender’s name in Schedule 1.01(A) hereto, as such amount may be terminated or reduced from time to time in accordance with the terms of this Agreement (and shall also mean, as the context require, any Revolving Credit Commitment of any Lender).

Revolver Credit Extension ” has the meaning specified therefor in Section 2.11.

Revolver Extension Request ” has the meaning specified therefor in Section 2.11.

Revolving Loan ” means the loans made by Revolving Loan Lenders to the Borrowers pursuant to Section 2.01(a)(i).

Revolving Loan Lender ” means a Lender with a Revolving Credit Commitment.

Revolving Loan Obligations ” means any Obligations with respect to the Revolving Loans (including without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Royalty Reserves ” means reserves established by the Administrative Agent in its good faith exercise of its Permitted Discretion against royalty payments due and payable by the Borrowers, it being understood that any such Royalty Reserves shall be limited to (1) 25% in respect of the first $12,500,000 of accrued royalties attributable to Eligible Inventory and (2) 100% in respect of accrued royalties in excess of $12,500,000 attributable to Eligible Inventory.

Sanctioned Country ” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

Sanctioned Person ” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

SEC ” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.

 

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Secured Party ” means any Agent, any Lender, the L/C Issuer, any Bank Product Provider and each other holder of any of the Obligations.

Securities Act ” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Securitization ” has the meaning specified therefor in Section 12.07(i).

Security Agreement ” means a Pledge and Security Agreement, in form and substance satisfactory to the Collateral Agent, made by the Loan Parties in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, as amended, amended and restated, supplemented or otherwise modified from time to time.

Security Documents ” means, collectively, the Security Agreement and the documents listed on Schedule 1.01(B) hereto or otherwise executed and delivered by a Loan Party which purports to grant a Lien in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations, in each case as amended, amended and restated, supplemented or otherwise modified from time to time.

Senior Leverage Ratio ” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) the amount of Consolidated Funded Indebtedness of such Person and its Subsidiaries as of the end of such period (excluding any Subordinated Indebtedness of such Person and its Subsidiaries then outstanding) minus Qualified Cash of such Person and its Subsidiaries in excess of $2,000,000 as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for such period.

Senior Officer ” means the President, Chief Executive Officer, Chief Financial Officer or Chief Operating Officer of any Loan Party.

Settlement Period ” has the meaning specified therefor in Section 2.02(d)(i) hereof.

“Special Advance Amount” means $5,000,000 during the period commencing on the Amendment No. 5 Effective Date through and including December 31, 2017 and $0 at all other times.

Solvent ” means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person on a going concern basis is not less than the total amount of the liabilities of such Person, (ii) the present fair salable value of the assets of such Person on a going concern basis is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (v) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital .

 

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Standard  & Poor’s ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

Subordinated Indebtedness ” means (a) the Acon Subordinated Indebtedness, and (b) any other Indebtedness of any Loan Party the terms of which are reasonably satisfactory to the Agents and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (i) by the execution and delivery of a subordination agreement, in form and substance reasonably satisfactory to the Agents, or (ii) otherwise on terms and conditions (including, without limitation, subordination provisions, payment terms, interest rates, covenants, remedies, defaults and other material terms) reasonably satisfactory to the Agents; it being understood that the following terms in respect of such Indebtedness will be satisfactory to the Agents: (1) no cash principal payments prior to the maturity thereof and payment of cash interest permitted at commercially reasonable rate in absence of continuing Event of Default, (2) matures at least 180 days after the Final Maturity Date, (3) subject to customary limited exceptions, indefinite standstill period on the exercise of remedies (whether or not of a type available to unsecured creditors) until the Obligations are Paid in Full, and (4) unsecured.

Subsidiary ” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.

Swap ” means any “swap” as defined in Section 1a(47) of the CEA and regulations thereunder other than (a) a swap entered into on, or subject to the rules of, a board of trade designated as a contract market under Section 5 of the CEA, or (b) a commodity option entered into pursuant to CFTC Regulation 32.3(a).

Swap Obligation ” means any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap which is also a Lender Provided Hedge Agreement.

Taxes ” has the meaning specified therefor in Section 2.09(a).

Termination Event ” means (a) any event that causes any Loan Party or any of its Subsidiaries to incur liability under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (b) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (c) the institution of proceedings by the PBGC to terminate an Employee Plan, or (d) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.

 

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Term Loan ” has the meaning specified therefor in Section 2.01(a)(ii).

Term Loan A ” has the meaning specified therefor in Section 2.01(a)(ii).

“Term Loan A-1” has the meaning specified therefor in Section 2.01(a)(ii) .

Term Loan B ” has the meaning specified therefor in Section 2.01(a)(ii).

Term Loan A Lender ” means a Lender with a Term Loan A , Term Loan A-1 or a Term Loan A-1 Commitment .

Term Loan B A-1 Commitment ” means, with respect to each Term Loan A Lender, the commitment of such Term Loan A Lender to make the Term Loan B A-1 to the Borrowers in the amount set forth in Schedule 1.01(A) hereto (as amended by Amendment No.  3 5 ), as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.

Term Loan B Lender ” means a Lender with a Term Loan B or a Term Loan B Commitment .

Term Loan Lender ” means, collectively, the Term Loan A Lenders and the Term Loan B Lenders.

Term Loan Obligations ” means any Obligations with respect to the Term Loans (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto).

Title Insurance Policy ” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Collateral Agent, together with all endorsements made from time to time thereto, issued by or on behalf of a title insurance company reasonably satisfactory to the Collateral Agent, insuring the Lien created by a Mortgage in an amount and on terms reasonably satisfactory to the Collateral Agent, delivered to the Collateral Agent.

Total Commitment ” means the sum of the Total Revolving Credit Commitment and the Total Term Loan Commitment.

Total Revolving Credit Commitment ” means an amount equal to Maximum Revolving Loan Amount in effect from time to time, and shall also mean, as the context may require, the collective obligations of all Revolving Loan Lenders pursuant to their respective Revolving Credit Commitments.

Total Term Loan Commitment ” means, collectively, the sum of the amounts of the Lenders’ Term Loan B A-1 Commitments.

Transferee ” has the meaning specified therefor in Section 2.09(a).

 

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TTM Consolidated EBITDA ” means, with respect to any Person for any period, the Consolidated EBITDA of such Person and its Subsidiaries for the trailing twelve-month period then ended.

UCP 600 ” has the meaning specified therefor in Section 3.02(b).

Underground Toys ” means Underground Toys Limited , a private limited company formed under the laws of England and Wales.

Underground Toys Acquisition ” means the acquisition by Funko UK of certain assets of Underground Toys pursuant to the Underground Toys APA.

Underground Toys APA ” means that certain Asset Purchase Agreement, dated as of December 22, 2016, by and among Funko UK, Underground Toys and the stockholders of Underground Toys, as in effect on the Amendment No. 3 Effective Date.

Underground Toys Earnout ” means the cash earnout to be paid in connection with the Underground Toys Acquisition pursuant to Section 3.7(b) of the Underground Toys APA.

Uniform Commercial Code ” has the meaning specified therefor in Section 1.04.

Unused Line Fee ” has the meaning specified therefor in Section 2.06(b).

USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

WARN ” has the meaning specified therefor in Section 6.01(z).

Section 1.02 Terms Generally . The definitions of terms herein shall apply equally to 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” 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.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) 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 hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

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Section 1.03 Certain Matters of Construction . References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders or by each Lender affected thereby or by all Lenders, as applicable. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent (or any subagent or designee or delegee of any Agent), any agreement entered into by any Agent (or any subagent or designee or delegee of any Agent) pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent (or any subagent or designee or delegee of any Agent) pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent (or any subagent or designee or delegee of any Agent), shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders (including each Bank Product Provider). Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to the actual knowledge of a Senior Officer of any Loan Party. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

Section 1.04 Accounting and Other Terms .

(a) Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP applied on a basis consistent with those used in preparing the Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Ultimate Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. Unless otherwise expressly provided herein, all financial calculations shall be performed with Inventory valued on a first-in, first-out basis and (ii) calculations shall be made so as to exclude (without duplication of any adjustments otherwise provided in the calculation of amounts and ratios) the effect of purchase accounting adjustments associated with the Acquisition or any Permitted Acquisition.

 

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(b) All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “ Uniform Commercial Code ) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.

Section 1.05 Time References; Notices . Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided , however , that with respect to a computation of fees or interest payable to any Agent, any Lender or the L/C Issuer, such period shall in any event consist of at least one full day. Any notice or report specified to be due hereunder on a date that is not a Business Day shall be due on next Business Day following such due date.

Section 1.06 Effectiveness of the Borrowers . The Buyer shall be the initial Borrower under this Agreement. Immediately upon consummation of the Funko Acquisition, the execution and delivery of the signature pages of the Borrowers to this Agreement shall become effective and Parent and Funko shall also become Borrowers.

ARTICLE II.

THE LOANS

Section 2.01 Commitments . (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth:

(i) Each Revolving Loan Lender severally agrees to make Revolving Loans in Dollars to the Borrowers at any time and from time to time from the Effective Date to the Final Maturity Date, or until the earlier reduction of its Revolving Credit Commitment to zero in accordance with the terms hereof, in an aggregate principal amount of Revolving Loans at any time outstanding not to exceed the amount of such Lender’s Revolving Credit Commitment.

 

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(ii) On the Effective Date, the Lenders made term loans (the “ Initial Term Loan ”) to the Borrowers in an aggregate original principal amount equal to $175,000,000, and on the Amendment No. 1 Effective Date, the Lenders made the First Amendment Term Loan (the First Amendment Term Loan, together with the Initial Term Loan, are referred to herein collectively as the “ Term Loan A ”) to the Borrowers in an aggregate principal amount equal to $50,000,000 . As of , and on the Amendment No. 3 Effective Date, the aggregate outstanding principal balance of Lenders made term loans ( the Term Loan A is $217,400,000 B”) to the Borrowers in an aggregate original principal amount equal to $50,000,000 . Subject to the terms and conditions of this Agreement and Amendment No. 5 , on the Amendment No. 3 5 Effective Date each Term Loan B A Lender with a Term Loan B A-1 Commitment agrees (severally, and not jointly or jointly and severally) to make term loans (collectively, the “ Term Loan B A -1 ”, and together with the Initial Term Loan and the First Amendment Term Loan, the “ Term Loan A ”, and the Term Loan A, collectively with the Term Loan B , the “ Term Loan ”) to the Borrowers in an amount equal to such Term Loan B A Lender’s Pro Rata Share of the Term Loan B A-1 Commitment, which, for the sake of clarity, shall be an amount equal to $ 50,000,000 20,000,000 in the aggregate. As of the Amendment No. 5 Effective Date, the aggregate outstanding principal balance of the Term Loan A is $215,250,000 and Term Loan B is $47,000,000.

(b) Notwithstanding the foregoing:

(i) The aggregate principal amount of all Revolving Loans outstanding at any time to the Borrowers shall not exceed the lower of (A) the difference between (x) the Total Revolving Credit Commitment and (y) the aggregate Letter of Credit Obligations and (B) the difference between (x) the then current Borrowing Base and (y) the aggregate Letter of Credit Obligations.

(ii) Each Revolving Credit Commitment of each Lender shall automatically and permanently be reduced to zero on the Final Maturity Date. Within the foregoing limits, the Borrowers may borrow, repay and reborrow Revolving Loans, on or after the Effective Date and prior to the Final Maturity Date, subject to the terms, provisions and limitations set forth herein.

 

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(iii) The aggregate principal amount of the Term Loan B A-1 made on the Amendment No. 3 5 Effective Date shall not exceed the Term Loan B A-1 Commitment. Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.

(iv) The aggregate principal amount of all Loans and Letter of Credit Obligations outstanding at any time to the Borrowers shall not exceed the Total Commitment.

Section 2.02 Making the Loans . (a) An Authorized Officer on behalf of the Administrative Borrower, as applicable, shall (I) give the Administrative Agent prior telephonic notice immediately confirmed in writing in substantially the form of Exhibit C hereto (a “Notice of Borrowing”), not later than (i) 12:00 noon (New York City time) on the date which is three (3) applicable Business Days prior to the date of a proposed LIBOR Rate Loan or (ii) 12:00 noon (New York City time) on the date of a proposed Reference Rate Loan on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan (which shall be denominated in Dollars), (ii) in the case of Loans requested on the Effective Date, whether such Loan is requested to be a Revolving Loan or the Term Loan, (iii) whether the Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of any such LIBOR Rate Loan, the initial Interest Period with respect thereto, (iv) the use of the proceeds of such proposed Loan, (v) the proposed borrowing date, which must be an applicable Business Day, and, with respect to the Term Loan B A-1 , must be the Amendment No.  3 5 Effective Date. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from any Authorized Officer of Administrative Borrower designated in writing to the Administrative Agent. Each Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Loan on behalf of the Borrowers until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.”

(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith. Each Revolving Loan that is a LIBOR Rate Loan shall be made in a minimum amount of $1,000,000 and shall be in integral multiples of $250,000 in excess thereof. The Borrowers shall have not more than eight (8) LIBOR Rate Loans made to the Borrowers in effect at any given time. For the avoidance of doubt, each Revolving Loan that is a Reference Rate Loan shall not be required to be made in a minimum increment amount.

(c) (i) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the applicable

 

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Lenders simultaneously and proportionately to their Pro Rata Shares of the applicable Total Revolving Credit Commitment and Total Term Loan Commitment of each such Lender, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.

(ii)  Notwithstanding any other provision of this Agreement, and in order to reduce the number of fund transfers among the Borrowers, the Agents and the Lenders, the Borrowers, the Agents and the Lenders agree that the Administrative Agent may (but shall not be obligated to), and the Borrowers and the Lenders hereby irrevocably authorize the Administrative Agent to, fund, on behalf of the Revolving Loan Lenders, pursuant to Section 2.01, subject to the procedures for settlement set forth in Section 2.02(d); provided , however , that (a) the Administrative Agent shall in no event fund any such Revolving Loans if the Administrative Agent shall have received written notice from the Collateral Agent or the Required Lenders on the Business Day prior to the date of such proposed Revolving Loan that one or more of the conditions precedent contained in Section 5.02 will not be satisfied at the time of such proposed Revolving Loan, and (b) the Administrative Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 5.02 have been satisfied. If the Administrative Borrower gives a Notice of Borrowing requesting a Revolving Loan, and the Administrative Agent elects not to fund such Revolving Loan, on behalf of the Revolving Loan Lenders, then promptly after receipt of the Notice of Borrowing requesting such a Revolving Loan, the Administrative Agent shall notify each Revolving Loan Lender of the specifics of such requested Revolving Loan and that it will not fund such requested Revolving Loan on behalf of such Revolving Loan Lenders. If the Administrative Agent notifies such Revolving Loan Lenders that it will not fund a requested Revolving Loan, on behalf of such applicable Revolving Loan Lenders, each such applicable Revolving Loan Lender shall make its Pro Rata Share of the requested Revolving Loan, available to the Administrative Agent, in immediately available funds, in the applicable Administrative Agent’s Account no later than 3:00 p.m. (New York City time) (provided that the Administrative Agent requests payment from such applicable Revolving Loan Lender not later than 1:00  p.m. (New York City

 

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time)) on the date of the proposed Revolving Loan. The Administrative Agent will make the proceeds of the Revolving Loans available to the Borrowers on the day of such proposed Revolving Loan by causing an amount, in immediately available funds, equal to the proceeds of all such Revolving Loans received by the Administrative Agent in the applicable Administrative Agent’s Account or the amount funded by the Administrative Agent on behalf of the applicable Revolving Loan Lenders to be deposited in an account designated by the Administrative Borrower.

(iii)  If the Administrative Agent has notified the Revolving Loan Lenders, that the Administrative Agent, on behalf of the Revolving Loan Lenders, will not fund a particular Revolving Loan, pursuant to Section 2.02(c)(ii), the Administrative Agent may assume that each such Revolving Loan Lender has made such amount available to the Administrative Agent on such day and the Administrative Agent, in its sole discretion, may, but shall not be obligated to, cause a corresponding amount to be made available to the Borrowers on such day. If the Administrative Agent makes such corresponding amount available to the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by any such Revolving Loan Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made to the Borrowers, by the Administrative Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account.

(iv)  Nothing in this Section 2.02(c) shall be deemed to relieve any Revolving Loan Lender from its obligations to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

 

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(d) (i) With respect to all periods for which the Administrative Agent has funded Revolving Loans pursuant to Section 2.02(c), on Friday of each week, or if the applicable Friday is not a Business Day, then on the following Business Day, or such shorter period as the Administrative Agent may from time to time select (any such week or shorter period being herein called a “ Settlement Period ”), the Administrative Agent shall notify each Revolving Loan Lender, of the unpaid principal amount of the Revolving Loans outstanding as of the last day of each such Settlement Period. In the event that such amount is greater than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period (or, if there has been no preceding Settlement Period, the amount of the Revolving Loans made on the date of such Revolving Loan Lender’s initial funding), each Revolving Loan Lender shall promptly (and in any event not later than 2:00 p.m. (New York City time) if the Administrative Agent requests payment from such Lender not later than 1:00  p.m. (New York City time) on such day) make available to the Administrative Agent its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In the event that such amount is less than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period, the Administrative Agent shall promptly pay over to each Revolving Loan Lender its Pro Rata Share of the Total Revolving Credit Commitment of the difference in immediately available funds. In addition, if the Administrative Agent shall so request at any time when a Default or an Event of Default shall have occurred and be continuing, or any other event shall have occurred as a result of which the Administrative Agent shall determine that it is desirable to present claims against the Borrowers for repayment, each Revolving Loan Lender shall promptly remit to the Administrative Agent or, as the case may be, the Administrative Agent shall promptly remit to each Revolving Loan Lender sufficient funds to adjust the interests of the Revolving Loan Lenders in the then outstanding Revolving Loans to such an extent that, after giving effect to such adjustment, each such Revolving Loan Lender’s interest in the then outstanding Revolving Loans will be equal to its Pro Rata Share thereof. The obligations of the Administrative Agent and each Revolving Loan Lender under this Section 2.02(d) shall be absolute and unconditional. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans which have been funded by such Revolving Loan Lender.

 

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(ii) In the event that any Revolving Loan Lender fails to make any payment required to be made by it pursuant to Section 2.02(d)(i), the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Administrative Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan by the Administrative Agent to the Borrowers for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent for its own account. Nothing in this Section 2.02(d)(ii) shall be deemed to relieve any Revolving Loan Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Administrative Agent or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder.

Section 2.03 Repayment of Loans; Evidence of Debt . (a) The outstanding principal of all Revolving Loans made to the Borrowers shall be due and payable on the Final Maturity Date.

(a) Amortization of Term Loan.

(i) The outstanding principal amount of the Term Loan A shall be repayable in consecutive quarterly installments equal to $2,150,000 per quarter , with each such installment to be due and payable on the last day of each quarter commencing on March 31, 2016 , equal to (x) $2,150,000 for the quarter ending on June 30, 2017 and (y) $2,350,000 per quarter, for each quarter thereafter until the Final Maturity.

(ii) The outstanding principal amount of the Term Loan B shall be repayable in consecutive monthly installments equal to $1,000,000 per month, with each such installment to be due and payable on the last day of each month commencing on February 28, 2017 until the Final Maturity; provided , that if the Administrative Borrower delivers a written

 

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notice to the Administrative Agent not less than five (5) Business Days prior to the date of any installment in respect of the Term Loan B that is due and payable on or prior to December 31, 2017, advising the Administrative Agent that the Borrowers have elected to forego such installment payment, then the Borrowers shall pay to the Administrative Agent, on behalf of the Term Loan B Lenders (ratably in accordance with their Pro Rata Share of the Term Loan B), a fee in the amount of $110,000 (the “ Installment Waiver Fee ”), on or prior to the date such installment payment would have been due and payable, and upon the Administrative Agent’s receipt of such fee, the installment due and payable on such date shall be permanently waived, without further action or writing.

(iii)   The outstanding unpaid principal amount of the Term Loan and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (i) the termination of the Total Revolving Credit Commitment, (ii) the date of the acceleration of the Term Loans in accordance with the terms hereof and (iii) the Final Maturity Date.

(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(d) The Administrative Agent shall maintain accounts in which it shall record ( i) the amount of each Loan made hereunder, (i i) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (ii i) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(e) The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided 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 obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement.

(f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its

 

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registered assigns) in a form furnished by the Collateral Agent and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.04 Interest .

(a) Revolving Loans . Prior to the Amendment No. 1 Effective Date, subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan, shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each such Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus 2.00%. Each such Revolving Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for such Loan plus 2.50%. From and after the Amendment No.  1 Effective Date, each Revolving Loan shall only be a LIBOR Rate Loan and all Revolving Loans shall bear interest on the principal amount of Revolving Loans from time to time outstanding at a rate per annum equal to the LIBOR Rate plus 2.50%.

(b) Term Loan .

(i) Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan A or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each portion of the Term Loan A that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan A until repaid, at a rate per annum equal to the Reference Rate plus 6.25%. Each portion of the Term Loan A that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan A until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for the Term Loan A (or such portion thereof) plus 7.25%.

(ii)  Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan B or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each

 

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portion of the Term Loan B that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan B until repaid, at a rate per annum equal to the Reference Rate plus 9.00%. Each portion of the Term Loan B that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan B until repaid, at a rate per annum equal to the applicable LIBOR Rate for the Interest Period in effect for the Term Loan B (or such portion thereof) plus 10.00%.

(c) Default Interest . To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the election of either Agent or the Required Lenders and notice to the Administrative Borrower of such election following the occurrence and during the continuance of an Event of Default (which election and notification shall not be required with respect of any Event of Default described in Section 9.01(a), (f) or (g)), as of the date of any such Event of Default (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower), (i) the principal of, and all accrued and unpaid interest on, all Loans, fees, indemnities, outstanding Letter of Credit Obligations or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred (or in the case of an Event of Default resulting from a breach of Section 7.01(a), from the date any Agent provides notice of such Event of Default to the Administrative Borrower) until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate, and (ii) the Letter of Credit Fees shall be increased by two (2.0%) percentage points above the per annum rate otherwise applicable hereunder. All interest and other amounts payable pursuant to subclauses (i) and (ii) of this Section 2.04(e) shall be payable on demand.

(d) Interest Payment . Interest on each Loan shall be payable on each Interest Payment Date, commencing on the first Interest Payment Date following the month in which such Loan is made and at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder.

(e) General . All interest and fees shall be computed on the basis of a year of 360 days (except that interest on Reference Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year)) for the actual number of days, including the first day but excluding the last day, elapsed.

 

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Section 2.05 Reduction of Commitment; Prepayment of Loans .

(a) Reduction of Commitments.

(i)  Revolving Credit Commitments . The Total Revolving Credit Commitment shall terminate on the Final Maturity Date. The Borrowers may, without premium or penalty, reduce the Total Revolving Credit Commitment to an amount (which may be zero) not less than the sum of (A) the aggregate unpaid principal amount of all Revolving Loans then outstanding, (B)  the aggregate principal amount of all Revolving Loans not yet made as to which a Notice of Borrowing has been given by the Administrative Borrower under Section 2.02, (C)  the Letter of Credit Obligations at such time and (D)  the stated amount of all Letters of Credit not yet issued as to which a request has been made and not withdrawn; provided that in no event shall the Borrowers be permitted to reduce the Total Revolving Credit Commitment to an amount less than $25,000,000 (other than a permanent reduction of the Total Revolving Credit Commitment to zero). Each such reduction (1)  shall be in an amount which is an integral multiple of $1,000,000 (unless the Total Revolving Credit Commitment in effect immediately prior to such reduction is less than $1,000,000), (2) shall be made by providing not less than 5 Business Days’ prior written notice to the Administrative Agent, (3)  shall be irrevocable and (4)  shall be accompanied by the payment of the Applicable Prepayment Premium, if any, payable in connection with such reduction of the Total Revolving Credit Commitment (which shall be paid to Administrative Agent for the benefit of the Revolving Loan Lenders and shall be allocated among the Revolving Loan Lenders as they may separately agree among themselves). Once reduced, the Total Revolving Credit Commitment may not be increased. Each such reduction of the Total Revolving Credit Commitment shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance its Pro Rata Share.

(ii) Term Loan . The Total Term Loan Commitment shall terminate at 5:00 p.m. (New York City time) on the Amendment No. 3 5 Effective Date.

(b) Optional Prepayment .

 

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(i)   Revolving Loans . At any time and from time to time, the Borrowers may prepay the principal of any Revolving Loan, in whole or in part. Each prepayment made pursuant to this clause (b)(i) made in connection with a reduction of the Total Revolving Credit Commitment pursuant to clause (a)(i) above shall be accompanied by the payment of the Applicable Prepayment Premium, if any.

(ii)   Term Loans . The Borrowers may, at any time and from time to time, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, prepay the principal of the Term Loans, in whole or in part, so long as, after giving pro forma effect to such proposed payment, the Borrowers shall have Availability on the date of such proposed payment, and also average Availability over the 30 days ending with the date of such proposed payment (assuming that such proposed payment (and any Revolving Loans drawn to fund such proposed payment) had been made on the first day of such 30 day period), of at least $10,000,000. Each prepayment made pursuant to this clause  (b)(ii) shall be accompanied by the payment of (A)  accrued interest to the date of such payment on the amount prepaid and (B)   the Applicable Prepayment Premium, if any, payable in connection with such prepayment of the Term Loans. Each such prepayment shall be applied, at the Borrower’s option, ratably to either the Term Loan A or the Term Loan B (or to both) against the remaining installments of principal due thereon until Paid in Full, either in the order of maturity as to the installments due with respect to the applicable Term Loan or in the inverse order of maturity as the Administrative Borrower may elect and designate in writing.

(iii)  Termination of Agreement . Notwithstanding anything to the contrary in this Section 2.05, upon at least ten (10)  days prior written notice to the Administrative Agent, the Administrative Borrower may terminate this Agreement by Paying in Full to the Administrative Agent the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement, and the Lenders’ obligations to extend credit hereunder shall terminate concurrently with such repayment. The Borrowers shall be obligated to Pay in Full the Obligations, plus the Applicable Prepayment Premium, if any, payable in connection with such termination of this Agreement on the date set forth as the date of termination of this Agreement in such notice; provided that such notice of termination may be rescinded (and/or updated to provide a new payoff date) by the Administrative Borrower if any transaction involving the refinancing or repayment of the Obligations fails to close.

 

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(c) Mandatory Prepayment .

(i)  Overadvances . The Borrowers will not later than five (5)   Business Days after the occurrence thereof, prepay the Revolving Loans or provide Cash Collateral up to the outstanding amount of the Letter of Credit Obligations at any time when the aggregate principal amount of all Revolving Loans plus the outstanding amount of all Letter of Credit Obligations exceeds the Borrowing Base, to the full extent of any such excess. If at any time after the Borrowers have complied with the first sentence of this Section 2.05(c)(i), the aggregate Letter of Credit Obligations are greater than the then current Borrowing Base, the Borrowers shall provide Cash Collateral of such excess to the Administrative Agent. Such Cash Collateral shall be deposited in a bank account subject to a Cash Management Agreement in favor of the Collateral Agent and, provided that no Event of Default shall have occurred and be continuing, returned to the Borrowers, at such time as ( x) the aggregate Letter of Credit Obligations plus the aggregate principal amount of all outstanding Revolving Loans no longer exceeds the Borrowing Base and (y)   the aggregate Letter of Cre dit Obligations no longer exceed the Letter of Credit Sublimit, as determined by the Administrative Agent.

(ii)  Commitment Termination . The Borrowers will immediately prepay the outstanding principal amount of the Term Loans in the event that the Total Revolving Credit Commitment is terminated in accordance with the terms hereof for any reason.

(iii)  Cash Dominion . Subject to Section 4.01, at such time as the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d), the Administrative Agent shall on each Business Day apply all funds transferred to or deposited in the Administrative Agent’s Account to the payment, in whole or in part, of the Revolving Loans (or, in the event the Revolving Loans have been paid in full, to the Cash Collateralization of any outstanding Letters of Credit).

(iv)   Excess Cash Flow . Within five (5) days of the date on which audited annual financial statements are required to be delivered pursuant to Section 7.01(a)(iii)  (the “ ECF Due Date ”), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ending on December 31, 2016 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii) , five (5) days after the date such statements are required to be delivered to the Agents and the

 

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Lenders pursuant to Section 7.01(a)(iii) , the Borrowers shall prepay the outstanding principal amount of the Loans in an amount equal to the result of (to the extent positive): (A) 50% (or (x) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.75:1.00 but greater than or equal to 2.00:1.00, 25% or (y) if the Senior Leverage Ratio measured for the four Fiscal Quarter period ending on the last day of such Fiscal Year was less than 2.00:1.00, 0%) of the Excess Cash Flow of the Ultimate Parent and its Subsidiaries for such Fiscal Year; provided, that, until such time that at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), (1) the percentage in subclause (A) above shall be increased from 50% to 60% and (2) the percentage in clause (A)(x) above shall be increased from 25% to 35%, minus (B) at any time after at least $10,000,000 of Term Loans have been voluntarily prepaid pursuant to Section 2.05(b)(ii), the aggregate principal amount of all additional voluntary prepayments of the Term Loans made during such Fiscal Year (or during the 90 days prior to the ECF Due Date) but only to the extent such prepayments (x) were applied against the remaining installments of principal in respect of the Term Loan in the order required pursuant to Section 2.05(d) in relation to prepayments required under this clause (iv) and (y) were not previously applied to reduce any other payment pursuant this clause (iv).

(v)  Dispositions . Subject to Section 2.05(c)(viii) below, not later than one (1) Business Day following any Disposition by any Loan Party pursuant to Sections 7.02(c)(ii)(B) and 7.02(c)(ii)(C), the Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by the Loan Parties (and not paid to the Administrative Agent as a prepayment of the applicable Loans) shall exceed for all such Dispositions, $500,000 in any Fiscal Year. Nothing contained in this Section 2.05(c)(v) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).

(vi) Debt Issuances . Not later than one (1) Business Day following the issuance or incurrence by any Loan Party of any Indebtedness (other than Permitted Indebtedness), the Borrowers shall prepay the outstanding amount of the Obligations in accordance with clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith The provisions of this Section 2.05(c)(vi) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.

 

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(vii) Casualty and Condemnation. Subject to Section 2.05(c)(viii) below, not later than one (1)  Business Day following the receipt by any Loan Party of any casualty insurance (other than business interruption insurance) or condemnation proceeds in respect of any Collateral in excess of $500,000 in any Fiscal Year, the Borrowers shall prepay the outstanding principal of the Obligations in accordance with clause (d)  below in an amount equal to 100% of such insurance or condemnation proceeds, net of any reasonable expenses incurred in collecting such insurance or condemnation proceeds, provided that the threshold referred to above shall not be applicable to limit repayment obligations under this Section 2.05(vii) at any time when an Event of Default has occurred and is continuing.

(viii)   Reinvestment Rights . Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party in connection with a Disposition or the receipt of insurance proceeds or condemnation awards that are required to be used to prepay the Obligations pursuant to Section 2.05(c)(v) or 2.05(c)(vii), as the case may be, up to $5,000,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions (except that the foregoing limitation shall not apply to proceeds received from the Disposition of obsolete, worn out or surplus equipment in the ordinary course pursuant to Section 7.02(c)(ii)(B) hereof) (collectively, the “ Reinvestment Eligible Funds ”) shall not be required to be so used to prepay the Obligations to the extent that such Reinvestment Eligible Funds are used to purchase, replace, repair, restore or otherwise acquire properties or assets used in such Person’s business, provided that, (i) no Default or Event of Default has occurred and is continuing on the date such Person receives such Reinvestment Eligible Funds, (ii) the Administrative Borrower delivers a certificate to the Administrative Agent pursuant to Section 7.01(a)(iv), (iii) such Reinvestment Eligible Funds are deposited in a Cash Management Account, and (iv) upon the earlier of (a) the expiration of 180-day period following the receipt of such Reinvestment Eligible Funds or (b) the occurrence of a Default or an Event of Default, such Reinvestment Eligible Funds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(v) or Section 2.05(c)(vii) as applicable .

 

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(d) Application of Payments. Each prepayment pursuant to subsections (c)(iii),(c)(iv), (c)(v), (c)(vi), (c)(vii) and (c)(viii) above shall be applied, first , to the applicable Term Loans, and second , to the Revolving Loans, except that proceeds of casualty insurance and non-ordinary course dispositions with respect to Inventory shall be applied, first, to the Revolving Loans (without any reduction in the Total Revolving Credit Commitment or any applicable Revolving Credit Commitment) and, second, to the applicable Term Loans. Prepayments of the Term Loans pursuant to Section 2.05(c) shall be applied against the next four quarters of scheduled amortization in respect of the Term Loan (ratably to the Term Loan A and the Term Loan B), with the balance applied ratably to the Term Loan A and the Term Loan B in the inverse order of maturity.

Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, prepayments required under Section 2.05(c) shall continue to be applied in the manner set forth in this Section 2.05(d), unless the Administrative Agent has elected to, or has been directed by the Collateral Agent to, apply payments and other proceeds of Collateral in accordance with Section 4.03(b), in which case prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b).

(e) Interest and Fees . Any prepayment made pursuant to this Section 2.05 (other than prepayments made pursuant to subsections (c)(i) and (c)(iii) of this Section 2.05) shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) if applicable pursuant to Section 2.06(e) , the Applicable Prepayment Premium, payable in connection with such prepayment of the Loans and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero at a time when the Total Revolving Credit Commitment has been terminated, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.

(f) Cumulative Prepayments . Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.

Section 2.06 Fees .

(a) Fee Letter . As and when due and payable under the terms of the Fee Letter, the Borrowers shall pay the fees set forth in the Fee Letter.

 

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(b) Unused Line Fee . From and after the Effective Date and until the Final Maturity Date, the Borrowers shall pay to the Administrative Agent for the account of the Revolving Loan Lenders, to be allocated among the Revolving Loan Lenders as they may separately agree among themselves, an unused line fee in Dollars (the “Unused Line Fee”), which shall accrue at the rate per annum of 0.375% on the average daily excess, if any, of the Maximum Revolving Loan Amount over the average principal amount of all Revolving Loans and Letter of Credit Obligations outstanding from time to time and shall be payable quarterly in arrears on the first day of each calendar quarter commencing January 1, 2016 and on the Final Maturity Date (and, for the avoidance of doubt, and without limiting the generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Unused Line Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Unused Line Fee so charged on any date).

(c) Letter of Credit Fees . The Borrowers shall pay (A)   to the Administrative Agent, for the ratable benefit of the Revolving Loan Lenders, a Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in clause (B)   below) which shall accrue at a rate per annum equal to the L/C Fee Rate in effect at such time, times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter commencing January   1, 2016 and on the Final Maturity Date, and (B)   to the Administrative Agent, for the benefit of the L/C Issuer, a fronting fee of one quarter of one percent (0.25%) per annum times the daily balance of the Maximum Undrawn Amount of all outstanding Letters of Credit, for the period from and excluding the date of issuance of same to and including the date of expiration or termination, such fees to be calculated on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the first day of each quarter and on the Final Maturity Date, together with any and all customary administrative, issuance, amendment, payment and negotiation charges (as per the L/C Issuer’s standard fee schedule) with respect to any Letters of Credit and all fees and expenses as agreed upon by the L/C Issuer and the Borrowers in connection with any Letter of Credit, including in connection with the opening, amendment or renewal of any such Letter of

 

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Credit and any acceptances created thereunder and shall reimburse Administrative Agent for any and all fees and expenses, if any, paid by the Administrative Agent to the L/C Issuer, which charges and fees shall be payable on demand or as otherwise mutually agreed upon by the Administrative Agent and the Borrowers. All such charges shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Any such charge in effect at the time of a particular transaction shall be the charge for that transaction, notwithstanding any subsequent change in the L/C Issuer’s prevailing charges for that type of transaction;

(all of the foregoing fees and charges in paragraphs collectively, the “ Letter of Credit Fees ”). All such Letter of Credit Fees shall be deemed earned in full on the date when the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this Agreement for any reason. Without limiting the generality of the provisions of Section 4.01, the parties hereto agree that, for administrative convenience, Administrative Agent may charge the Loan Account of the Borrowers with the amount of a Revolving Loan made as a Reference Rate Loan on the date any such Letter of Credit Fees with respect to any Letter of Credit are due and payable for the purpose of paying such Letter of Credit Fees; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge.

(d) Loan Servicing Fee . From and after the Effective Date and until the later of (i) the Final Maturity Date and (ii) the date on which all Obligations are Paid in Full, the Borrowers shall pay to the Administrative Agent for the account of the Agents a non-refundable loan servicing fee (the “ Loan Servicing Fee ”) equal to $20,000 each quarter, which shall be payable quarterly in advance on the Effective Date and on the first day of each calendar quarter thereafter, commencing on January 1, 2016 (in the case of the fee paid on the Effective Date, it shall be payable ratably based on the number of days remaining in the calendar quarter in which the Effective Date occurs). For the avoidance of doubt, and without limiting the generality of Section 4.01 hereof, Borrowers hereby agree that upon the coming due of any such Loan Servicing Fee, the entire amount thereof may be charged to the Loan Account of Borrowers as a Revolving Loan made as a Reference Rate Loan; provided that upon any such charge to the Loan Account, Administrative Agent shall give prompt notice to Administrative Borrower of such charge and of the calculation and total amount of such Loan Servicing Fee so charged on any date.

 

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(e) Applicable Prepayment Premium . In the event of the full or partial termination of this Agreement and repayment of the Obligations at any time prior to the Final Maturity Date, for any reason, including (i) termination upon the election of the Required Lenders to terminate after the occurrence and during the continuation of an Event of Default (or, in the case of the occurrence of any Event of Default described in Section 9.01(f) or Section 9.01(g) with respect to any Loan Party, automatically upon the occurrence thereof), (ii) foreclosure and sale of Collateral, (iii) sale of the Collateral in any Insolvency Proceeding, or (iv) restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Agents and the Lenders, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their respective Pro Rata Shares, the Applicable Prepayment Premium, measured as of the date of such termination. Notwithstanding the foregoing, no Applicable Prepayment Premium shall be due and owing (a) in connection with a Term Loan prepayment resulting from the events described in Section 2.05(c)(iv) or (vii), (b) to any Lender that finances (or any Affiliate of such Lender that finances) the voluntary termination of this Agreement pursuant Section 2.05(b)(iii), (c) prepayments with the proceeds of Permitted Cure Stock, (d) prepayments of Revolving Loans that are not accompanied by a termination of the Revolving Credit Commitment, (e)  any prepayment of the Term Loan pursuant to Section 2.05(b)(ii) during the first eighteen (18) months after the Effective Date, to the extent the aggregate principal amount of all such prepayments during such period is less than $10,000,000, (f) in connection with any voluntary prepayment of the Term Loans pursuant to Section 2.05(b)(ii) to the extent such prepayment occurs within 90 days prior to the date on which Excess Cash Flow is required to be applied to the Loans in accordance with Section 2.05(c)(iv); provided that the Applicable Prepayment Premium shall be due and owing on any portion of such voluntary prepayment described in this clause (f) that exceeds the amount of the corresponding Excess Cash Flow payment with respect to which such voluntary prepayment is deducted, and (g)  in connection with any prepayment of the Term Loan B from the proceeds of a Qualified Initial Public Offering or a Private Placement.

(f) Audit and Collateral Monitoring Fees . The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of

 

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the Agents may visit any or all of the Loan Parties and/or conduct certain audits, inspections, appraisals, valuations and/or field examinations for which the Borrowers will be obligated to reimburse expenses of the Agents and such representatives. The Borrowers agree to pay such expenses, which shall be calculated on the basis of (i) $1,000 per day per examiner plus the examiner’s reasonable out-of-pocket costs and expenses incurred in connection with all such visits, audits, inspections, appraisals, valuations and field examinations, (ii) a supervisory review fee of $1,300 per each such audit, inspection, valuation or field examination and (iii) the cost of all visits, audits, inspections, appraisals, valuations and field examinations conducted by a third party on behalf of the Agents. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to pay the fees, costs and expenses for more than three (3) such audits, inspections, valuations and/or field examinations described in clauses (i), (ii) and (iii), in each case conducted during each consecutive twelve (12) month period during the term of this Agreement, provided that Borrowers acknowledge that Administrative may elect to conduct such three (3) audits, inspections, valuations or field examinations with respect to Borrowers during any such consecutive twelve (12) month period at different times, and further provided that, nothing contained in this sentence or otherwise in this Agreement limiting Borrowers’ obligations to pay the fees, costs and expenses of such audits, inspections, valuations or field examinations shall limit the rights of Agents pursuant to the first sentence of this Section 2.06(f) and Section 7.01(f), in each case, if conducted at their own expense. In addition, (x) at any time after the first anniversary of this Agreement, Administrative Agent, acting in its Permitted Discretion, may elect to reduce the number of audits, inspections, valuations and/or field examinations per twelve (12) month period with respect to which Borrowers shall be liable for the fees, costs and expenses thereof (absent the existence of any Event of Default) from three (3) to two (2) if, to the extent and only continuing for so long as such reduction is consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies, and (y) absent the existence of any Event of Default, Agent, acting in its Permitted Discretion, shall use commercially reasonable efforts to endeavor to schedule its periodic audits, inspections, valuations and/or field examinations in a manner to minimize any adverse impact on the operations of Loan Parties to the extent consistent with Administrative Agent’s governmental regulatory requirements and generally applicable internal policies.

 

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Section 2.07 LIBOR Option.

(a) In lieu of having interest charged at the rate based upon the Reference Rate, the Borrowers shall have the option (the “LIBOR Option”) to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate. Each Interest Period of a LIBOR Rate Loan made to Borrowers shall commence on the date such LIBOR Rate Loan is made and shall end on such date as the Borrower may elect as set forth in subsection 2.02(a) above; provided that no Interest Period shall end after the last day of the Final Maturity Date; provided, further, from and after the Amendment No. 1 Effective Date, notwithstanding anything in this Agreement to the contrary, all Revolving Loans shall have interest charged based upon the LIBOR Rate.

(b) The Administrative Borrower shall elect the initial Interest Period applicable to a LIBOR Rate Loan made to the Borrowers by its Notice of Borrowing given to the Administrative Agent pursuant to Section 2.02(a) or by its notice of conversion given to the Administrative Agent pursuant to Section 2.07(c), as the case may be. The Administrative Borrower shall elect the duration of each succeeding Interest Period by giving irrevocable written notice to the Administrative Agent of such duration not later than 11:00 a.m. (New York time) on the day which is not less than three (3) Business Days prior to the last day of the then current Interest Period applicable to such LIBOR Rate Loan. If the Administrative Agent does not receive timely notice of the Interest Period elected by the Administrative Borrower, the Administrative Borrower shall be deemed to have elected to convert such LIBOR Rate Loan to a Reference Rate Loan, subject to Section 2.07(c) herein below.

(c) The Administrative Borrower may, on the last Business Day of the then current Interest Period applicable to any outstanding LIBOR Rate Loan made to the Borrowers, or on any Business Day with respect to Revolving Loans or any portion of the Term Loan that are Reference Rate Loans, convert any such loan into a loan of another type (i.e., a Reference Rate Loan or a LIBOR Rate Loan) in the same aggregate principal amount, provided that any conversion of a LIBOR Rate Loan made to the Borrowers not made on the last Business Day of the then current Interest Period applicable to such LIBOR Rate Loan shall be subject to Section 2.08. If a Borrower desires to convert a Loan, the Administrative Borrower shall give the Administrative Agent a LIBOR Notice by no later than 11:00 a.m. (New York City time) (i) on the day which is three (3) Business Days’ prior to the date on which such conversion is to occur with respect to a conversion from a Reference Rate Loan to a LIBOR

 

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Rate Loan, or (ii) on the day which is one (1) Business Day prior to the date on which such conversion is to occur with respect to a conversion from a LIBOR Rate Loan to a Reference Rate Loan, specifying, in each case, the date of such conversion, the Loans to be converted and the duration of the first Interest Period therefore.

(d) Subject to Section 2.05(b), the Borrowers may prepay the LIBOR Rate Loans in whole at any time or in part from time to time, together with accrued interest on the principal being prepaid to the date of such repayment in the case of any LIBOR Rate Loan made to the Borrowers, and the Administrative Borrower shall specify the date of prepayment of Loans which are LIBOR Rate Loans, the Loan to which such prepayment is to be applied and the amount of such prepayment.

(e) [Intentionally omitted.]

(f) Notwithstanding any other provision hereof, if any Requirement of Law, or Change in Law, shall make it unlawful for any Lender (for purposes of this subsection (f), the term “ Lender ” shall include any Lender and the office or branch where any Lender or any corporation or bank controlling such Lender makes or maintains any LIBOR Rate Loans) to make or maintain its LIBOR Rate Loans, the obligation of such Lender to make LIBOR Rate Loans hereunder shall forthwith be cancelled and the Borrowers shall, if any affected LIBOR Rate Loans are then outstanding, promptly upon request from the Administrative Agent, either pay all such affected LIBOR Rate Loans or convert such affected LIBOR Rate Loans into loans of another type. If any such payment or conversion of any LIBOR Rate Loan denominated in US Dollars made to the Borrowers is made on a day that is not the last day of the Interest Period applicable to such LIBOR Loan, the Borrowers shall pay the Administrative Agent, upon the Administrative Agent’s request, such amount or amounts as may be necessary to compensate Lenders for any Funding Losses sustained or incurred by Lenders in respect of such LIBOR Rate Loan as a result of such payment or conversion, including (but not limited to) any interest or other amounts payable by Lenders to lenders of funds obtained by Lenders in order to make or maintain such LIBOR Rate Loan. A certificate as to any additional amounts that describes in reasonable detail the calculations thereof payable pursuant to the foregoing sentence submitted by Lenders to the Administrative Borrower shall be conclusive absent manifest error.

(g) In the event that any Agent or any Lender shall have determined that:

 

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(i) reasonable means do not exist for ascertaining the LIBOR Rate applicable pursuant to Section 2.02(a) hereof for any Interest Period; or

(ii) dollar deposits in the relevant amount and for the relevant maturity are not available in the London interbank market, with respect to an outstanding LIBOR Rate Loan, a proposed LIBOR Rate Loan, or a proposed conversion of a Reference Rate Loan into a LIBOR Rate Loan; or

(iii) at any time that a Default or an Event of Default has occurred and is continuing,

then upon notice of same being given to the Administrative Borrower, the Administrative Agent shall give such Administrative Borrower prompt written, telephonic or facsimile notice of such determination. If such notice is given, (i) any such requested LIBOR Rate Loan shall be made as a Reference Rate Loan, unless such Administrative Borrower shall notify the Administrative Agent no later than 1:00 p.m. (New York City time) two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of LIBOR Rate Loan, (ii) any Reference Rate Loan or LIBOR Rate Loan which was to have been converted to an affected type of LIBOR Rate Loan shall be continued as or converted into a Reference Rate Loan, or, if such Administrative Borrower shall notify the Administrative Agent, no later than 11:00 a.m. (New York City time) two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of LIBOR Rate Loan, and (iii) any outstanding affected LIBOR Rate Loans shall be converted into a Reference Rate Loan at the end of the applicable Interest Period. Until such notice has been withdrawn, the Lenders shall have no obligation to make an affected type of LIBOR Rate Loan or maintain outstanding affected LIBOR Rate Loans and the Borrowers shall not have the right to convert a Reference Rate Loan or an unaffected type of LIBOR Rate Loan into an affected type of LIBOR Rate Loan.

(h) Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required actually to acquire LIBOR deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. Except for Section 2.07(g)(ii), the provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation as to which interest is accruing at the LIBOR Rate by acquiring LIBOR deposits for each Interest Period in the amount of the LIBOR Rate Loans.

Section 2.08 Funding Losses . In connection with each LIBOR Rate Loan, the Borrowers shall indemnify, defend, and hold the Agents and the applicable Lenders harmless against any loss, cost, or expense incurred by any Agent or any such Lender as a result of (a) the payment of any principal of any such LIBOR Rate Loan other than on the last day of an Interest

 

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Period applicable thereto (including as a result of a Default or an Event of Default), (b) the conversion of any such LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow, convert, continue or prepay any such LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “ Funding Losses ”). Funding Losses shall, with respect to any Agent or any Lender, be deemed to equal the amount reasonably determined by such Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan excluding any loss of margin above the LIBOR Rate had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of an Agent or a Lender delivered to the Administrative Borrower setting forth a calculation in reasonable detail any amount or amounts that such Agent or such Lender is entitled to receive pursuant to this 2.08 shall be conclusive absent manifest error.

Section 2.09 Taxes. (a) Any and all payments by any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (“ Taxes ”), except as required by applicable law. If any applicable law requires the deduction or withholding of any Taxes from any such payment, then the applicable Loan Party or the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Taxes are Indemnified Taxes, then the sum payable by the Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deduction or withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. For this purpose, “Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any Obligation of any Loan Party, other than Excluded Taxes. For this purpose, “Excluded Taxes” means Taxes described in Section 2.09(e) below, and:

(A) taxes imposed on net income (or taxes imposed in lieu thereof) or branch profits taxes imposed on or with respect to any Agent, any Lender or the L/C Issuer (or any transferee or assignee thereof, including a participation holder (any such entity, a “Transferee”)) or, in the case of a pass-through entity, any of its beneficial owners by the United States or the jurisdiction in which such Person is organized or has its principal lending office, or with which such Person has any other present or former connection (other than a connection arising solely from entering into, receiving any payment under or enforcing its rights under this Agreement or any other Loan Document),

 

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(b) In addition, each Loan Party agrees to pay to the relevant Governmental Authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (“ Other Taxes ”). Each Loan Party shall deliver to each Agent, each Lender and the L/C Issuer (or Transferee) official receipts in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such Indemnified Taxes or Other Taxes.

(c) The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent, each Lender and the L/C Issuer harmless from and against Indemnified Taxes and Other Taxes (including, Indemnified Taxes and Other Taxes imposed on any amounts payable under this Section 2.09) paid by such Person, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes.

(d) (i) Each Lender (or Transferee) with respect to the Obligations that is organized under the laws of a jurisdiction outside the United States (a “ Non-U.S. Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a properly completed and duly executed copy of either U.S. Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including the appropriate attachments thereto) or any subsequent versions thereof or successors thereto, in each case claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax and payments of interest hereunder along with any other appropriate documentation establishing such exemption or reduction. In addition, in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the IRC such Non-U.S. Lender hereby represents to the Agents and the Borrower that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the IRC is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the IRC) of either Parent, the Borrowers or the Guarantors and is not a controlled foreign corporation related to either Parent, the Borrowers or the Guarantors (within the meaning of Section 864(d)(4) of the IRC), and such Non-U.S. Lender agrees that it shall promptly notify the Administrative Agent (or, in the case of a participant, the Lender granting the participation only) in the event any such

 

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representation is no longer accurate. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender changes its applicable lending office by designating a different lending office (a “ New Lending Office ”). In addition, such Non-U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable. If the lapse of time or a change in circumstances renders a previous certification obsolete or inaccurate in any material respect, the Non-U.S. Lender shall deliver to the Administrative Agent (who shall promptly deliver a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) new, properly completed and duly executed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation as may be required to establish such Non-U.S. Lender’s entitlement to a continued exemption from or reduction in United States withholding tax if such Non-U.S. Lender or beneficial owner continues to be so entitled.

(ii) Each Lender (or Transferee) and Agent that is a “United States person” (within the meaning of Section 7701(a)(30) of the IRC) (each a “ Lender ”) agrees that it shall deliver to the Administrative Agent (who shall promptly provide a copy thereof to the Borrower) (or, in the case of a participant, to the Lender granting the participation only) a complete and duly executed copy of Internal Revenue Service Form W-9 or successor form certifying that such Lender (or Transferee) is not subject to United States backup withholding tax on the date it becomes a party to this Agreement. Such forms shall be delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the case of a Transferee that is a participation holder, on or before the date such participation holder becomes a Transferee hereunder). In addition, such U.S. Lender shall deliver such forms within 20 days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender granting a participation, as applicable.

(iii) Notwithstanding any other provision of this Section 2.09, a Lender shall not be required to deliver any form pursuant to this Section 2.09(d) that such Lender is not legally able to deliver. Upon written request by the Administrative Borrower, the Administrative Agent shall provide to the Administrative Borrower any U.S. Internal Revenue Service Form received by the Administrative Agent pursuant to clauses (d)(i) and (d)(ii) above.

 

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(e) The Loan Parties shall not be required to indemnify any Lender, or pay any additional amounts to any Lender, in respect of United States Federal withholding or backup withholding tax pursuant to this Section 2.09 to the extent that (i) the obligation to withhold amounts with respect to United States Federal withholding or backup withholding tax existed on the date such Lender became a party to this Agreement (or, in the case of a Transferee that is a participation holder, on the date such participation holder became a Transferee hereunder) or, with respect to payments to a New Lending Office, the date such Lender designated such New Lending Office with respect to a Loan; provided , however , that this clause (i) shall not apply to the extent the indemnity payment or additional amounts any Transferee, or Lender (or Transferee) through a New Lending Office, would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the Person making the assignment, participation or transfer to such Transferee, or Lender (or Transferee) making the designation of such New Lending Office, would have been entitled to receive in the absence of such assignment, participation, transfer or designation, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender or the Administrative Agent to comply with the provisions of clause (d) above, or (iii) the withholding is imposed pursuant to sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement (and any amended or successor version that is substantively comparable and not materially more on onerous to comply with and any current or future regulations or official interpretation thereof (“ FATCA ”).

(f) Any Agent, any Lender or the L/C Issuer (or Transferee) claiming any indemnity payment or additional payment amounts payable pursuant to this Section 2.09 shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Administrative Borrower or to change the jurisdiction of its applicable lending office if the making of such a filing or change would avoid the need for or reduce the amount of any such indemnity payment or additional amount that may thereafter accrue, would not require such Agent, such Lender or the L/C Issuer (or Transferee) to disclose any information such Agent, such Lender or the L/C Issuer (or Transferee) deems confidential and would not, in the sole determination of such Agent, such Lender or the L/C Issuer (or Transferee), be otherwise disadvantageous to such Agent, such Lender or the L/C Issuer (or Transferee).

 

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(g) If any Agent, any Lender or the L/C Issuer (or Transferee) determines in its good faith that it has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 2.09, it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section 2.09 with respect to the Indemnified Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of such Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Agent or such Lender (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Loan Party or any other Person.

(h) FATCA . If a payment made to a Lender under any Loan Document would be subject to United States federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent as may be necessary for the Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (h), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(i) The obligations of the parties under this Section 2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

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Section 2.10 Increased Costs and Reduced Return . (a) If any Lender, any Agent or the L/C Issuer shall have determined that any Change in Law shall (i) subject such Agent, such Lender or the L/C Issuer, or any Person controlling such Agent, such Lender or the L/C Issuer to any tax, duty or other charge with respect to this Agreement or any Loan made by such Agent or such Lender or any Letter of Credit issued by the L/C Issuer, or change the basis of taxation of payments to such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer of any amounts payable hereunder (except for Indemnified Taxes and Excluded Taxes), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan, any Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer or (iii) impose on such Agent, such Lender or the L/C Issuer or any Person controlling such Agent, such Lender or the L/C Issuer any other condition regarding this Agreement or any Loan or Letter of Credit, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Agent, such Lender or the L/C Issuer of making any Loan, issuing, guaranteeing or participating in any Letter of Credit, or agreeing to make any Loan or issue, guaranty or participate in any Letter of Credit, or to reduce any amount received or receivable by such Agent, such Lender or the L/C Issuer hereunder, then, upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such increased costs or reductions in amount; provided , however , that notwithstanding anything to the contrary in this Section 2.10(a), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(a) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(b) If any Agent, any Lender or the L/C  Issuer shall have determined that any Change in Law either (i)  affects or would affect the amount of capital required or expected to be maintained by such Agent, such Lender or the L/C  Issuer or any Person controlling such Agent, such Lender or the L/C Issuer, and such Agent, such Lender or the L/C  Issuer determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, Letters of Credit issued or any guaranty or participation with respect thereto, such Agent’s, such Lender’s or the L/C  Issuer’s or such other controlling Person’s other obligations hereunder, or (ii)  has or would have the effect of reducing the rate of return on such Agent’s, such Lender’s or the L/C  Issuer’s such other controlling Person’s capital to a level below that which such Agent, such Lender or the L/C  Issuer or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, Letters of Credit issued, or any guaranty or participation with respect thereto or any agreement to make Loans, to issue Letters of Credit or such Agent’s, such Lender’s or the L/C  Issuer’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration, such Agent’s, such Lender’s or the L/C  Issuer’s or such other controlling Person’s policies with respect to capital adequacy), then,

 

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upon demand by such Agent, such Lender or the L/C Issuer, the Borrowers shall pay to such Agent, such Lender or the L/C Issuer from time to time such additional amounts as will compensate such Agent, such Lender or the L/C Issuer for such cost of maintaining such increased capital or such reduction in the rate of return on such Agent’s, such Lender’s or the L/C Issuer’s or such other controlling Person’s capital; provided , however , that notwithstanding anything to the contrary in this Section 2.10(b), it shall be a condition to a Lender’s or L/C Issuer’s exercise of its rights, if any, under this Section 2.10(b) that such Lender or L/C Issuer shall generally be exercising similar rights with respect to borrowers under similar agreements.

(c) All amounts payable under this Section  2.10 shall bear interest from the date that is ten (10) days after the date of demand by any Agent, any Lender or the L/C Issuer until Payment in Full to such Agent, such Lender or the L/C  Issuer at the Reference Rate. A certificate of such Agent, such Lender or the L/C Issuer claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Agent, such Lender or the L/C  Issuer to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Agent’s, such Lender’s or the L/C Issuer’s reasons for invoking the provisions of this Section  2.10, and shall be final and conclusive absent manifest error.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided , that the Borrowers shall not be required to compensate such Agent, such Lender or the L/C Issuer pursuant to this Section  2.10 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Agent, Lender or L/C Issuer, as the case may be, notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Agent’s, Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 days period referred to above shall be extended to include the period of retroactive effect thereof).

(e) The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

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Section 2.11 Extended Term Loans and Extended Revolving Credit Commitments .

(a) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Term Loan be amended to extend the scheduled maturity date (a “ Term Loan Extension ”) with respect to all or a portion of any principal amount of the applicable Term Loan (any such Term Loan or portion thereof that has been so converted, “ Extended Term Loans ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Term Loan, the Administrative Borrower shall provide a notice to the Collateral Agent (who shall provide a copy of such notice to each Term Loan Lender and the Administrative Agent) (a “ Term Loan Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii) certifying that both before and after giving effect to such Term Loan Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Term Loan Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition, (iii) the Administrative Borrower shall have offered to all Term Loan Lenders the opportunity to participate in such Term Loan Extension on a pro rata basis with respect to the corresponding Term Loan and on the same terms and conditions to each such Term Loan Lender, and any applicable Lender may elect to agree or to decline, in its sole discretion, and (iv) setting forth the proposed terms of the Extended Term Loans to be established, which (x) shall be identical as offered to each Term Loan Lender, (including as to the proposed interest rates and fees payable) and offered pro rata to each Term Loan Lender, and (y)  shall specify the date on which the Administrative Borrower proposes that the Term Loan Extension shall be effective and the proposed final maturity date of the Extended Term Loan, except that :

(A) all or any of the scheduled amortization payments of principal of the Extended Term Loan may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans, to the extent provided in the applicable Extension Amendment;

 

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(B) repayments of principal of the Extended Term Loan may be delayed to dates occurring after the Final Maturity Date;

(C) the effective yield with respect to the Extended Term Loan (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for the Term Loan, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Term Loan shall at any time (over the life of such Extended Term Loan) exceed by more than 0.50% the effective yield on the then outstanding Term Loan, the margin applicable to all existing Term Loans shall be increased to the extent necessary so that at all times thereafter the holders of the Term Loan do not receive less than the effective yield with respect to such Extended Term Loan less 0.50%;

(D) the Extension Amendment may provide for other covenants and terms that apply only after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Term Loan);

(E) Extended Term Loans may have mandatory prepayment terms that provide for the application of proceeds from mandatory prepayment events to be made first to prepay the applicable Term Loans before applying any such proceeds to prepay such Extended Term Loans; and

(F) Extended Term Loans may have optional prepayment terms (including call protection and terms which allow the applicable Term Loan to be optionally prepaid prior to the prepayment of such Extended Term Loan) as may be agreed by the applicable Administrative Borrower and the Lenders; provided that no Extended Term Loans may be optionally prepaid prior to the date on which the corresponding Term Loan is Paid in Full, unless such optional prepayment is accompanied by a pro rata optional prepayment of the corresponding Term Loan.

(b) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Term Loan at the time of establishment thereof be earlier than the Final Maturity Date, (ii)  the weighted average life to maturity of any Extended Term Loan at the time of establishment thereof shall be no shorter than the remaining weighted average life to maturity of the corresponding Term Loan, and (iii)  any Extended Term Loan may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Term Loan Extension Request.

 

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(c) The Administrative Borrower may, at any time and from time to time, request that all or a portion of the Revolving Credit Commitments be amended to extend the scheduled maturity date (a “ Revolving Credit Extension ”) with respect to all or a portion of any principal amount of such Revolving Credit Commitments (any such Revolving Credit Commitments which have been so amended, “ Extended Revolving Credit Commitments ”) and to provide for other terms consistent with this Section 2.11 without the consent of any Lender other than the extending Lender(s). In order to establish any Extended Revolving Credit Commitments, the Administrative Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each Revolving Loan Lender and the Collateral Agent) (each, a “ Revolver Extension Request ”; together with a Term Loan Extension Request, each an “ Extension Request ”), (i) certifying that no Default or Event of Default then exists, (ii)  certifying that both before and after giving effect to such Revolving Credit Extension, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the proposed effective date for the Revolving Credit Extension to the same extent as though made on and as of that 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, provided that if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition and in no event shall such materiality qualifier be applicable with respect to the representations set forth in the final sentence of Section  6.01(g)(i), (iii) the Administrative Borrower shall have offered to all Revolving Loan Lenders the opportunity to participate in such Revolving Credit Extension on a pro rata basis with respect to the Revolving Credit Commitments and on the same terms and conditions to each such Revolving Loan Lender, and any Revolving Loan Lender may elect to agree or to decline, in its sole discretion, and (iv)  setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which (x)  shall be identical as offered to each Revolving Loan Lender (including as to the proposed interest rates and fees payable) and offered pro rata to each Revolving Loan Lender and (y)  shall specify the date on which the Administrative Borrower proposes that the Revolving Credit Extension shall be effective and the proposed final maturity date of the Extended Revolving Credit Commitment, except that:

(A) the maturity date of the Extended Revolving Credit Commitments may be delayed to a later date than the Final Maturity Date, to the extent provided in the applicable Extension Amendment;

 

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(B) the effective yield with respect to extensions of credit under the Extended Revolving Credit Commitments (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the effective yield for extensions of credit under the Revolving Credit Commitments, in each case, to the extent provided in the applicable Extension Amendment; provided that if at the time of the effectiveness of any Extension Amendment, if the effective yield in respect of such new Extended Revolving Credit Commitments shall at any time (over the life of such Extended Revolving Credit Commitments) exceed by more than 0.50% the effective yield on the then outstanding Revolving Credit Commitments, the margin applicable thereto shall be increased to the extent necessary so that at all times thereafter the Revolving Loan Lenders do not receive less than the effective yield with respect to such Extended Revolving Credit Commitments less 0.50%;

(C) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Final Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Revolving Credit Commitments); and

(D) all borrowings under the Revolving Credit Commitments and the Extended Revolving Credit Commitments and repayments thereunder shall be made on a pro rata basis (except for (x) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings) and (y)  repayments required upon the maturity date of the non-extending Revolving Credit Commitments).

(d) Notwithstanding anything to the contrary, (i) in no event shall the final maturity date of any Extended Revolving Credit Commitment at the time of establishment thereof be earlier than the Final Maturity Date, (ii)  the amount of the Extended Revolving Credit Commitments shall not include any scheduled decrease prior to the Final Maturity Date, and (iii)  any Extended Revolving Credit Commitment may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Revolver Extension Request.

(e) The Administrative Borrower shall provide the applicable Extension Request at least ten Business Days prior to the date on which the Term Loan Lenders or Revolving Loan Lenders, as applicable,

 

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are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.11. No Lender shall have any obligation whatsoever to agree to have any of its Term Loans amended into Extended Term Loans or any of its Revolving Credit Commitments amended into Extended Revolving Credit Commitments, as applicable, pursuant to any Extension Request, and no Lender shall have any obligation whatsoever to respond to any such Extension Request. Any Lender that does not respond to the Extension Request on or prior to the date specified therein shall be deemed to have rejected such Extension Request. Any existing Term Loan Lender wishing to have all or a portion of its Term Loan subject to such Extension Request amended into Extended Term Loans and any Revolving Loan Lender wishing to have all or a portion of its Revolving Credit Commitment subject to such Extension Request amended into Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (each, an “ Extension Election ”) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Credit Commitments, as applicable, which it has elected to be amended into Extended Term Loans or Extended Revolving Credit Commitments, as applicable (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, in respect of which applicable Term Loan Lenders or Revolving Loan Lenders, as the case may be, shall have accepted the relevant Extension Request exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested to be extended pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, as applicable, subject to Extension Elections shall be amended to Extended Term Loans or Revolving Credit Commitments, as applicable, on a pro rata basis (subject to rounding by the Administrative Agent, which shall be conclusive) based on the aggregate principal amount of Term Loans or Revolving Credit Commitments, as applicable, included in each such Extension Election.

(f) Extended Term Loans and Extended Revolving Credit Commitments shall be established pursuant to an Extension Amendment to this Agreement among the Loan Parties, the Administrative Agent, the Collateral Agent and each Lender providing Extended Term Loans or Lender providing an Extended Revolving Credit Commitment, which shall be consistent with the provisions set forth above (but which shall not require the consent of any other Lender other than those consents provided pursuant to this Agreement). Each Extension

 

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Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto. In connection with any Extension Amendment, the Loan Parties, the Administrative Agent, the Collateral Agent shall enter into such amendments to the other Loan Documents as may be reasonably requested by the Agents (which shall not require any consent from any Lender other than those consents provided pursuant to this Agreement) in order to ensure that the Extended Term Loans or Extended Revolving Credit Commitments are provided with the benefit of the Collateral provided in the other Loan Documents and shall deliver such other agreements, documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Agents.

(g) The provisions of this Section  2.11 shall override any provision of Section 12.02(a) (other than provisions therein that require certain unanimous votes) to the contrary. No conversion of Loans pursuant to any Extension Request in accordance with this Section 2.11 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. For the avoidance of doubt, and notwithstanding anything to the contrary contained in the foregoing, no provision of any Extension Amendment may amend, modify or waive any provision of Sections 2.05(c)(i), 2.05(c)(iii), 2.05(d) or 4.03 without the consent of all Lenders.

Section 2.12 Mitigation Obligations; Replacement of Lenders .

(a) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section  2.10, then such Lender shall (at the request of the Administrative Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)  would eliminate or reduce amounts payable pursuant to such Section in the future, and (ii)  would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.

(b) If any Lender requires the Borrowers to pay any additional amounts under Section 2.07 or requests compensation under Section  2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a)  above in a manner that eliminates the accrual of such additional amounts, or if any Lender is a Defaulting Lender, then the Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in

 

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accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) the Borrowers shall have paid to the Agents any assignment fees specified in Section 12.07;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.07) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from payments required to be made pursuant to Section 2.07 or a claim for compensation under Section  2.10, such assignment will result in a reduction in such compensation or payments thereafter; and

(iv) such assignment does not conflict with applicable law.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply.

ARTICLE III.

LETTERS OF CREDIT

Sectin 3.01 Letters of Credit . Subject to the terms and conditions hereof (including Section  2.01(b) hereof), the L/C Issuer shall issue or cause the issuance of standby and/or trade letters of credit (collectively, “ Letters of Credit ”) for the account of the Borrowers or any of their Subsidiaries upon the request of Administrative Borrower (each such Letter of Credit, a “ Letter of Credit ”), which such Letters of Credit shall be denominated in Dollars. The Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed in the aggregate at any time the lower of (i) (A) the Borrowing Base minus (B) the aggregate principal amount of all Revolving Loans then outstanding, or (ii) the Letter of Credit Sublimit; provided that, notwithstanding anything to the contrary contained in the foregoing or in any other provision hereof, no Letter of Credit shall be issued if after giving effect thereto, any of the credit limits set forth in Section 2.01(b) would be violated. All disbursements or payments related to Letters of Credit shall be deemed to be Revolving Loans and shall bear interest at the rate applicable to Revolving Loans that are Reference Rate Loans in accordance with Section  2.04 . Letters of Credit that have not been drawn upon shall not bear interest.

 

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Section 3.02 Issuance of Letters of Credit .

(a) Subject to the terms hereof, the Administrative Borrower may request the L/C Issuer to issue or cause the issuance of a Letter of Credit by delivering to the Administrative Agent, at the Payment Office, prior to 10:00 a.m. (New York time), at least five (5) Business Days’ prior to the proposed date of issuance, the L/C Issuer’s form of letter of credit application (the “ Letter of Credit Application ”) completed to the reasonable satisfaction of the L/C Issuer, and such other certificates, documents and other papers and information as the L/C Issuer may reasonably request. The Administrative Borrower, also has the right to give instructions and make agreements with the L/C Issuer with respect to any application, any applicable letter of credit and related security agreement, any applicable letter of credit reimbursement agreement and/or any other applicable agreement, and the disposition of applicable documents, and to agree with the L/C Issuer upon any amendment, extension or renewal of any Letter of Credit.

(b) Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts, other written demands for payment, or acceptances of drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii)  except as provided in Section  3.02(d) below, have an expiry date not later than twelve (12)  months after such Letter of Credit’s date of issuance (subject to automatic renewals) and in no event later than the date that is 15 days prior to the Final Maturity Date. Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No.  600, and any amendments or revision thereof adhered to by the Issuer (“ UCP 600 ”) or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590) (“ ISP98 Rules ”), as determined by the L/C Issuer, and each trade Letter of Credit shall be subject to UCP 600.

(c) The Administrative Agent shall use its reasonable efforts to notify the Lenders of the request by the Administrative Borrower for a Letter of Credit hereunder.

(d) Notwithstanding anything to the contrary set forth in Section  3.02(b) or any other provision of this Agreement, Administrative

 

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Borrower may request and L/C Issuer may issue Letters of Credit (and/or renewals or extensions of existing Letters of Credit) under this Agreement with an expiry date that extends months beyond) the Final Maturity Date then in effect when such Letter of Credit (or the extension or renewal thereof) is requested (any such Letter of Credit so issued, renewed or extended, a “ Post-Term Letter of Credit ”), subject to all other existing terms and conditions of and provisions in this Agreement regarding Letters of Credit, including any terms, conditions and provisions regarding the requesting and issuance thereof, but provided that, under no circumstances may any such Post-Term Letter of Credit as so issued, renewed or extended have an expiry date later than the twelve-month anniversary of the Final Maturity Date as in effect when such Post-Term Letter of Credit is so issued, renewed or extended. Nothing contained in this Section  3.02(d) shall be construed under any circumstances as an agreement by Lenders to extend the Final Maturity Date or require or obligate in any way Agent, Lenders and/or Issuer to make any Loans or to issue any new Letters of Credit (or extend or renew any existing Letters of Credit) on or after the Final Maturity Date.

(e) All of the obligations, liabilities and indebtedness of any kind or nature of Borrowers with respect to any and all such Post-Term Letters of Credit (including all Reimbursement Obligations and obligations to pay Letter of Credit Fees and obligations to pay interest in respect of any disbursement made by L/C Issuer in connection with a drawing under a Post-Term Letter of Credit that is not immediately reimbursed by Borrowers (including any such interest accruing thereon after the Final Maturity Date, or after the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest and/or Letter of Credit Fees is allowed in such proceeding)) (any such obligations, liabilities and indebtedness, the “ Post-Term Letter of Credit Obligations ”) shall remain Obligations secured by the Collateral pursuant to the Liens created under the Loan Documents both prior to and after the Final Maturity Date, and Agents and Lenders shall have no obligations to release any Liens on the Collateral notwithstanding the overall termination of this Agreement and of the commitments of the Lenders hereunder, until such time as the last such Post-Term Letter of Credit shall have expired or terminated or shall been fully drawn and all Post-Term Letter of Credit Obligations (other than contingent indemnities and expense reimbursement obligations to the extent no claim therefore has been made, or is reasonably expected to be made) have been paid in full in cash, provided that , notwithstanding the foregoing, on the Final Maturity Date, Borrowers may Cash Collateralize each such Post-Term Letter of Credit, and in such event, if all other Obligations have been Paid in Full, Collateral

 

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Agent may release the Liens and security interests on all other Collateral in accordance with the Loan Documents. Administrative Agent will deposit such Cash Collateral in a non-interest bearing deposit account maintained at Administrative Agent. Borrowers agree that upon the coming due of any such Post-Term Letter of Credit Obligations, Agent may use such Post-Term Cash Collateral to pay and satisfy such Post-Term Letter of Credit Obligations.

(f) Notwithstanding anything to the contrary contained in this Agreement and/or the overall termination of this Agreement on the Final Maturity Date (subject to the survival of the provisions thereof that survive the termination of this Agreement by the terms thereof), all of the applicable provisions of Article III and Section  2.06(c) of this Agreement, any Letter of Credit application for any Post-Term Letter of Credit and any other documents executed by and/or between Borrowers and/or L/C Issuer with respect to any Post-Term Letter of Credit (other than any provisions providing for any obligations of any Lenders or any provisions giving Borrowers the right or ability to request that additional Letters of Credit be issued or that existing Letters of Credit be renewed or extended) shall survive the termination of this Agreement on the last day of the Term for the benefit of Agent and Lenders (but not for the benefit of Borrowers), and Borrowers shall remain bound thereby, including without limitation (i) the obligations under Section  2.6(c) of this Agreement for Borrowers to pay Letter of Credit Fees to L/C Issuer with respect to any Post-Term Letter of Credit for so long as each Post-Term Letter of Credit shall remain outstanding and (ii) the obligations under this Article III for Borrowers to pay interest on any disbursements or payments made by L/C Issuer relating to any Post-Term Letter of Credit until reimbursed.

Section 3.03 Requirements For Issuance of Letters of Credit . The Administrative Borrower shall authorize and direct the L/C Issuer to name one or more Borrowers as the “Applicant” or “Account Party” of each Letter of Credit. If the Administrative Agent is not the L/C Issuer of any Letter of Credit, the Administrative Borrower shall authorize and direct the L/C Issuer to deliver to the Administrative Agent all instruments, documents, and other writings and property received by the L/C Issuer pursuant to the Letter of Credit and to accept and rely upon the Administrative Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the application therefor.

Section 3.04 Disbursements, Reimbursement .

(a) Immediately upon the issuance of each Letter of Credit, each Revolving Loan Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s applicable Pro Rata Share (determined in accordance with paragraph (a) of the definition of “Pro Rata Share”) of the Maximum Face Amount of such Letter of Credit and the amount of such drawing, respectively.

 

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(b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the L/C Issuer will promptly notify the Administrative Borrower. Provided that it shall have received such notice by 12:00 noon (New York City time) with respect to any Letter of Credit, the Borrowers shall reimburse (such obligation to reimburse the L/C Issuer together with any interest thereon pursuant to Section 2.04 shall be referred to as a “ Reimbursement Obligation ”) the L/C Issuer prior to 1:00 p.m. (New York City time) on such date that an amount is paid by the L/C Issuer under any Letter of Credit (each such date, a “ Drawing Date ”) in an amount and in the currency equal to the amount and currency so paid by the L/C Issuer. In the event the Borrowers fail to reimburse the L/C Issuer for the full amount of any drawing under any Letter of Credit by 1:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, the Administrative Agent will promptly notify each Revolving Loan Lender thereof, and the Borrowers shall be deemed to have requested that a Revolving Loan that is a Reference Rate Loan be made by the Revolving Loan Lenders pursuant to Section 2.01(a)(i)(B) to be disbursed on the Drawing Date under such Letter of Credit. Any notice given by the Administrative Agent pursuant to this Section  3.04(b) may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(c) Each Revolving Loan Lender shall upon any notice pursuant to Section  3.04(b) make available to the L/C Issuer an amount in immediately available funds equal to its applicable Pro Rata Share (determined in accordance with paragraph (a)  of the definition of “Pro Rata Share”) of the amount of the drawing, whereupon the participating Lenders shall (subject to Section  3.04(d)) each be deemed to have made a Revolving Loan that is a Reference Rate Loan to the Borrowers in that amount. If any Revolving Loan Lender so notified fails to make available to the L/C Issuer the amount of such Lender’s applicable Pro Rata Share of such amount by no later than 2:00  p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, then (unless L/C Issuer and such Lender shall agree otherwise, each in their sole and absolute discretion) interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i)  at a rate per annum equal to the Federal Funds Effective Rate during the first

 

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t hree days following the Drawing Date and (ii) at a rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans on and after the fourth day following the Drawing Date. The Administrative Agent will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent to give any such notice on the Drawing Date or in sufficient time to enable any Revolving Loan Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 3.04(c), provided that such Lender shall not be obligated to pay interest as provided in Section 3.04(c) (i) and (ii) until and commencing from the date of receipt of notice from the Administrative Agent of a drawing. Each Revolving Loan Lender’s payment to the L/C Issuer pursuant to this Section 3.04(c) shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “ Participation Revolving Loan ” from such Lender in satisfaction of its Participation Commitment under this Section 3.04.

(d) With respect to any unreimbursed drawing that is not converted into a Revolving Loan to the Borrowers in whole or in part as contemplated by Section   3.04(b), because of the failure of Borrowers to satisfy the conditions set forth in Section   5.02 (other than any notice requirements) or for any other reason, the Borrowers shall be deemed to have incurred from the L/C Issuer a borrowing (each a “ Letter of Credit Borrowing ”) in the currency in which such Letter of Credit is denominated in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum equal to the interest rate on Revolving Loans that are Reference Rate Loans .

(e) Each Lender’s Participation Commitment shall continue until the last to occur of any of the following events: (x)   the L/C Issuer ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y)   no Letter of Credit issued or created hereunder remains outstanding and uncanceled and (z)   all Persons (other than the Borrowers) have been fully reimbursed for all payments made under or relating to Letters of Credit .

Section 3.05 Repayment of Participation Revolving Loans .

(a) Upon (and only upon) receipt by the L/C Issuer for its account of immediately available funds from the Borrowers (i)  i n reimbursement of any payment made by the L/C Issuer under any Letter of Credit with respect to which any Lender has made a Participation Revolving Loan to the L/C Issuer or (ii)  in payment of interest on such a payment made by the L/C Issuer under such a Letter of Credit, the L/C

 

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Issuer will pay to each Revolving Loan Lender in the same funds and currencies as those received by the L/C Issuer, the amount of such Lender’s applicable Pro Rata Share of such funds, except the L/C Issuer shall retain the amount of the applicable Pro Rata Share of such funds of any Revolving Loan Lender that did not make a Participation Revolving Loan in respect of such payment by the L/C Issuer.

(b) If the L/C Issuer is required at any time to return to the Borrowers or to a trustee, receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion of the payments made by the Borrowers to the L/C Issuer pursuant to Section   3.05(a) in reimbursement of a payment made under any Letter of Credit or interest or fee thereon, each Revolving Loan Lender shall, on demand of the L/C Issuer, forthwith return to the L/C Issuer the amount of its applicable Pro Rata Share of any amounts so returned by the L/C Issuer plus interest at the Federal Funds Effective Rate.

Section 3.06 Documentation . Each Borrower agrees to be bound by the terms of the Letter of Credit Application and by the L/C Issuer’s interpretations of any Letter of Credit issued for the Loan Account of Borrowers and by the L/C Issuer’s written regulations and customary practices relating to letters of credit, though the L/C Issuer’s interpretations may be different from the interpretations of Borrowers. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment), neither the L/C Issuer nor the Administrative Agent shall be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any instructions of any Borrower or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.

Section 3.07 Determination to Honor Drawing Request . In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the L/C Issuer shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

Section 3.08 Nature of Participation and Reimbursement Obligations . Each applicable Revolving Loan Lender’s obligation in accordance with this Agreement to make the Revolving Loans or Participation Revolving Loans as a result of a drawing under a Letter of Credit, and the obligations of the Borrowers to reimburse the L/C Issuer upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article III under all circumstances, including the following circumstances:

(a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Administrative Agent, the Borrowers or any other Person for any reason whatsoever;

 

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(b) the failure of the Borrowers or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in this Agreement for the making of a Revolving Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Revolving Loans under Section   3.04 ;

(c) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Documents;

(d) any claim of breach of warranty that might be made by any Borrower or any Lender against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Borrower or any Lender may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the L/C Issuer, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement, such Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrowers or any of their Subsidiaries and the beneficiary for which any Letter of Credit was procured);

(e) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provisions of services relating to a Letter of Credit;

(f) except as provided in Section   3.07 , any payment by the L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

(g) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

 

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(h) any failure by the Administrative Agent or the L/C Issuer to issue any Letter of Credit in the form requested by the applicable Borrowers, unless the Administrative Agent has received written notice from the Administrative Borrower of such failure within three (3)   Business Days after the Administrative Agent shall have furnished the Administrative Borrower a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

(i) any Material Adverse Effect on any Borrower or any Guarantor;

(j) any breach of this Agreement or any Loan Document by any party thereto;

(k) the occurrence or continuance of an insolvency proceeding with respect to any Borrower or any Guarantor;

(l) the fact that a Default or Event of Default shall have occurred and be continuing;

(m) the fact that the Final Maturity Date shall have occurred or this Agreement or the Obligations hereunder shall have been terminated; and

(n) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

Nothing contained in this Section  3.08 shall be deemed to relieve the Administrative Agent or the L/C Issuer from any claim by any of the Borrowers for the gross negligence or willful misconduct of the Administrative Agent or the L/C Issuer, respectively, in respect of honoring or failing to honor any drawing under any Letter of Credit or otherwise in respect of any Letter of Credit, but any such claim may not be used as a defense to the reimbursement obligation for any such drawing.

Section 3.09 Indemnity . In addition to amounts payable as provided in Section  12.15 , the Borrowers, jointly and severally, hereby agree to protect, indemnify, pay and save harmless the Administrative Agent and the L/C Issuer from and against any and all claims, demands, liabilities, damages, taxes, (except for the imposition of, or any change in the rate of, any taxes imposed on the net income of any Agent, any Lender or the L/C Issuer by the jurisdiction in which such Person is organized or has its principal lending office), penalties, interest, judgments, losses, costs, charges and expenses (including reasonable and documented out-of-pocket fees, expenses and disbursements of outside counsel and allocated costs of internal counsel) which the Administrative Agent or any of the Administrative Agent’s Affiliates may

 

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incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence, bad faith or willful misconduct of the Administrative Agent or the L/C Issuer or any of their respective Affiliates (as determined by a court of competent jurisdiction in a final nonappealable judgment), or (B) the wrongful dishonor by the Administrative Agent, the L/C Issuer, or any of their respective Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “ Governmental Acts ”).

Section 3.10 Liability for Acts and Omissions . As between the Borrowers, the L/C Issuer and the Revolving Loan Lenders, the Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among Borrowers and any beneficiary of any Letter of Credit or any such transferee; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (h) any consequences arising from causes beyond the control of the L/C Issuer, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the L/C Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall relieve the L/C Issuer from liability for the L/C Issuer’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment) in connection with actions or omissions described in such clauses (a) through (h) of such sentence. In no event shall the L/C Issuer or the L/C Issuer’s Affiliates be liable to the Borrowers for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, the L/C Issuer and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the L/C Issuer or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,

 

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and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the L/C Issuer or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “ Order ”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the L/C Issuer under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final nonappealable judgment), shall not put the L/C Issuer under any resulting liability to the Borrowers or any Revolving Loan Lender.

ARTICLE IV.

APPLICATION OF PAYMENTS; DEFAULTING LENDERS;

JOINT AND SEVERAL LIABILITY OF BORROWERS

Section 4.01 Payments; Computations and Statements . (a) The Borrowers will make each payment under this Agreement not later than 2:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America and in immediately available funds, to the applicable Administrative Agent’s Account. All payments received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day will be credited to the Loan Account on the next succeeding Business Day, provided that for the purpose of computing interest charges for the Obligations during any time when springing cash dominion is in effect pursuant to Section 8.01(d), all items of payment (including customer remittances received into any Cash Management Accounts and applied to the Obligations under any cash dominion arrangements described in Section 8.01) shall be deemed applied by the Administrative Agent one (1) Business Day after (A) the Business Day following the Administrative Agent’s receipt of such payments via wire transfer or electronic depository check or (B) in the case of payments received by the Administrative Agent in any other form, the Business Day such payment constitutes good funds. This approach is acknowledged by the parties to be an integral aspect of the price of the Lenders’ financing of the Borrowers and shall apply irrespective of the characterization of whether receipts are owned by the Borrowers or the Lenders. All payments shall be made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. Except as provided in Section 2.02, after receipt, the Administrative Agent will promptly thereafter cause to be

 

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distributed like funds relating to the payment of principal ratably to the applicable Lenders in accordance with their applicable Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement, provided that the Administrative Agent will cause to be distributed all interest and fees received from or for the account of the Borrowers not less than once each month and in any event promptly after receipt thereof. The Lenders and the Borrowers hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account of the Borrowers with any amount due and payable by the Borrowers under any Loan Document, provided that, in the absence of a continuing Event of Default, any such charge in respect of out-of-pocket fees, costs and expenses of the Agents and Lenders payable by the Borrowers shall occur no sooner than 15 days after the Administrative Borrower’s receipt of a reasonably detailed invoice therefor. Each of the Lenders and the Borrowers agrees that the Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing or whether any of the conditions precedent in Section 5.02 have been satisfied. Any amount charged to the Loan Account of the Borrowers shall be deemed a Revolving Loan hereunder made by the Revolving Loan Lenders to the Borrowers, funded by the Administrative Agent on behalf of the Revolving Loan Lenders and subject to Section 2.02 of this Agreement. The Lenders and the Borrowers confirm that any charges which the Administrative Agent may so make to the Loan Account of the Borrowers as herein provided will be made as an accommodation to the Borrowers and solely at the Administrative Agent’s discretion, provided that the Administrative Agent shall from time to time upon the request of the Collateral Agent, charge the Loan Account of the Borrowers with any amount not paid when due and payable under any Loan Document. Whenever any payment to be made or any report required to be delivered under any such Loan Document shall become due on a day other than a Business Day, such payment shall be made, or such report shall be delivered on the next succeeding Business Day and if applicable, such extension of time shall in such case be included in the computation of interest or fees, as the case may be. Except as otherwise expressly provided for herein, all computations of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such fees are payable. Each determination by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

(b) The Administrative Agent shall provide each of the Administrative Borrowers, promptly after the end of each calendar month, a summary statement (in the form from time to time used by the Administrative Agent) of the opening and closing daily balances in the Loan Account of the Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied, the amount of interest accrued on the Loans to the Borrowers during such month, any Letters of Credit issued by the L/C Issuer for the account of the Borrowers during such month, specifying the face amount thereof, the amount of charges to the Loan Account and/or Loans made to the

 

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Borrowers during such month to reimburse the Revolving Loan Lenders for drawings made under Letters of Credit, and the amount and nature of any charges to the Loan Account made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement shall be presumed to be correct and, thirty (30) days after the same is sent, shall be final and conclusive absent manifest error.

Section 4.02 Sharing of Payments . Except as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall forthwith (a) turn the same over to the Administrative Agent, in kind, and with such endorsements as may be required to negotiate the same to the Administrative Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (b) purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them in accordance with the applicable provisions of this Agreement; provided , however , that (i) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (A) the amount of such Lender’s required repayment to (B) the total amount so recovered from the purchasing Lender of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered) and (ii) the provisions of this Section shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or participant, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 4.02 may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.

Section 4.03 Apportionment of Payments . Subject to Section 2.02 hereof and to any written agreement among the Agents and/or the Lenders (including the Agreement Among Lenders):

(a) All payments of principal and interest in respect of outstanding Loans, all payments in respect of the Letter of Credit Obligations, all payments of fees (other than the fees set forth in Section   2.06 hereof to the extent set forth in a written agreement among the Agents and the Lenders, fees with respect to Letters of Credit provided for in Sections 2.06(c)(i)(B) and 2.06(c)(ii)) and all other payments in respect of

 

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any other Obligations, shall be allocated by the Administrative Agent among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans or Letter of Credit Obligations, as designated by the Person making payment when the payment is made.

(b) After the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Collateral Agent or the Required Lenders shall, apply all proceeds of the Collateral as follows: (i) first , ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents or the L/C Issuer until paid in full; (ii)  second , ratably to pay the Revolving Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Revolving Loan Lenders until paid in full; (iii)  third , ratably to pay interest then due and payable in respect of the Revolving Loans, Agent Advances and Reimbursement Obligations until paid in full; (iv)  fourth , ratably to pay principal of the Revolving Loans, Agent Advances and Letter of Credit Obligations (or, to the extent such Obligations are contingent, to provide Cash Collateral in respect of such Obligations) until paid in full; (v) fifth , ratably to pay Bank Product Obligations in an amount not to exceed $5,000,000 plus the amount of the Bank Product Reserve then in effect ; (vi)  sixth , ratably to pay the Term Loan Obligations in respect of any fees (other than any Applicable Prepayment Premium) and indemnities then due and payable to the Term Loan Lenders until paid in full; (vii)  seventh , ratably to pay interest then due and payable in respect of the Term Loan until paid in full; (viii)  eighth , ratably to pay principal of the Term Loan A until paid in full; (ix)  ninth , ratably to pay principal of the Term Loan B until paid in full; (x) tenth , ratably to pay the Obligations in respect of any Applicable Prepayment Premium then due and payable to the Lenders until paid in full; (xi) eleventh , ratably to Bank Product Obligations to the extent not paid under clause (v) above; and (xii) twelfth , to the ratable payment of all other Obligations then due and payable.

(c) In each instance, so long as no Event of Default has occurred and is continuing and the Administrative Agent has not elected to or has not been directed by the Collateral Agent to apply payments and other Proceeds of Collateral in accordance with Section 4.03(b), Section  4.03(b) shall not be deemed to apply to any payment by the Borrowers specified by the Administrative Borrower to the Administrative Agent to be for the payment of the principal of or interest on the Term Loans or other related Obligations then due and payable under any provision of this Agreement or the prepayment of all or part of the principal of the Term Loans in accordance with the terms and conditions of Section  2.05.

 

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(d) For purposes of Section   4.03(b), “paid in full” means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees and interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest calculated at default rates, interest on interest and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding.

(e) In the event of a direct conflict between the priority provisions of this Section   4.03 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section   4.03 shall control and govern.

Section 4.04 Defaulting Lenders . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(a) The Administrative Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the Administrative Agent for such Defaulting Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender, the Administrative Agent shall transfer any such payments to each other non-Defaulting Lender ratably in accordance with their Pro Rata Shares (without giving effect to the Pro Rata Shares of such Defaulting Lender) (but only to the extent that such Defaulting Lender’s Loans were funded by the other Lenders) or, if so directed by the Administrative Borrower and if no Default or Event of Default has occurred and is continuing (and to the extent such Defaulting Lender’s Loans were not funded by the other Lenders), retain the same to be re-advanced to the Borrowers as if such Defaulting Lender had made such Loans to the Borrowers. Subject to the foregoing, the Administrative Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by the Administrative Agent for the

 

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account of such Defaulting Lender. No Defaulting Lender shall be entitled to receive any Unused Line Fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fees that otherwise would have been required to have been paid to that Defaulting Lender).

(b)     Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section   12.07.

(c)     The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Administrative Agent or to the Lenders other than such Defaulting Lender.

(d)     This Section shall remain effective with respect to such Lender until either (i)   the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii)   the non-Defaulting Lenders, the L/C Issuer, the Agents, and the Borrowers shall have waived such Defaulting Lender’s default in writing, and the Defaulting Lender makes its Pro Rata Share of the applicable defaulted Loans and pays to the Agents all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

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Section 4.05 Joint and Several Liability of the Borrowers .

(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations, in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section   4.05) it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the Borrowers under the provisions of this Section   4.05 constitute the absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever.

(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan Documents for the Obligations in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as

 

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a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation.

(c) The provisions of this Section   4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section   4.05 shall remain in effect until all of the Obligations shall have been Paid in Full.

(d) Each of the Borrowers hereby agrees that it will not enforce any rights that it may now or hereafter acquire against any other entity constituting a Borrower or a Guarantor that arise from the existence, payment, performance or enforcement of such entity’s obligations under this Agreement and the other Loan Documents, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent and the Lenders against any other entity constituting a Borrower or a Guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any other entity constituting a Borrower or a Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the Payment in Full of the Obligations.

 

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ARTICLE V.

CONDITIONS TO LOANS

Section 5.01 Conditions Precedent to Effectiveness . This Agreement shall become effective as of the Business Day (the ” Effective Date ”) when each of the following conditions precedent shall have been satisfied in a manner reasonably satisfactory to the Agents:

(a) Payment of Fees, Etc. The Borrowers shall have paid   on or before the date of this Agreement all fees, costs, expenses and taxes then payable pursuant to Section   2.06 and Section   12.04.

(b) Representations and Warranties; No Event of Default . The following statements shall be true and correct: (i)   notwithstanding the provisions of Section   5.02(a)(i) and (ii)   below to the contrary, the only representations and warranties relating to the Borrowers and their Subsidiaries the accuracy of which shall be a condition to the availability of the Loans and the Letters of Credit on the Effective Date, shall be (A)   the representations and warranties contained in Section   6.01(a), (b), (c), (d), (k), (t), (u) and (y), and (B)   the representations and warranties made by Funko Holdings or with respect to the business of Parent in the Acquisition Agreement, but only to the extent that the Parent or any of its Affiliates have the right under the Acquisition Agreement to terminate their obligations under the Acquisition Agreement or not to consummate the transactions contemplated by the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement without regard to the Parent’s or the Buyer’s waiver of such breach; provided that the representations and warranties specified in clauses (A)   and (B) above are true and correct on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct on and as of such earlier date), and (ii)   no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms.

(c) Legality . The making of the initial Loans or the issuance of any Letters of Credit shall not contravene any law, rule or regulation applicable to any Agent, any Lender or the L/C   Issuer.

 

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(d) Delivery of Documents . The Collateral Agent shall have received on or before the Effective Date the following, each in form and substance reasonably satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective Date:

(i) a Security Agreement, together with, to the extent applicable, the original stock certificates representing all of the Equity Interests, and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and other proper instruments of transfer;

(ii) a UCC Filing Authorization Letter, together with (A)   appropriate financing statements on Form UCC -1, duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Agreement and (B)   evidence reasonably satisfactory to the Collateral Agent of the filing of such UCC-1 financing statements as reasonably requested by the Collateral Agent and each Mortgage;

(iii) certified copies of request for copies of information on Form UCC - 11, listing all effective financing statements which name as debtor any Loan Party and which are filed in the offices referred to in paragraph   (ii) above, together with copies of such financing statements, none of which, except as otherwise agreed by the Collateral Agent, shall cover any of the Collateral (other than Permitted Liens) and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such Liens;

(iv) the Collateral Assignment, duly executed by the Buyer;

(v) the Intercompany Subordination Agreement, duly executed by each Loan Party;

(vi) the Flow of Funds Agreement, duly executed by each party; thereto;

(vii) a copy of the resolutions of each Loan Party, certified as of the Effective Date by an Authorized Officer thereof, authorizing (A)   the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B)   the

 

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execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;

(viii) a Perfection Certificate, duly executed by the parties thereto;

(ix) a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers/directors/representatives;

(x) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such jurisdictions;

(xi) a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction;

(xii) a copy of the Governing Documents of each Loan Party, together with all amendments thereto, certified as of the Effective Date by an Authorized Officer of such Loan Party;

(xiii) an opinion of Hogan Lovells, counsel to the Loan Parties, as to such customary matters as the Agents may reasonably request;

(xiv) [Intentionally Omitted].

 

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(xv) [Intentionally Omitted].;

(xvi) [Intentionally Omitted].

(xvii) a certificate of an Authorized Officer of each Loan Party, certifying as to the matters set forth in Section  5.01(b);

(xviii) a copy of (A)  the Financial Statements and (B)  the financial projections described in Section  6.01(g)(ii) hereof, certified as of the Effective Date as complying with the representations and warranties set forth in Section  6.01(g)(ii) by an Authorized Officer of the Ultimate Parent;

(xix) a certificate of the chief financial officer of Funko Holdings certifying as to the solvency of the Borrowers (taken as a whole), which certificate shall be reasonably satisfactory in form and substance to the Collateral Agent;

(xx) evidence of the insurance coverage required by Section   7.01 and the terms of each Security Agreement and such other insurance coverage with respect to the business and operations of the Loan Parties as the Collateral Agent may reasonably request, in each case, where reasonably requested by the Collateral Agent, with such endorsements as to the named insureds or loss payees thereunder as the Collateral Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30   days’ prior written notice to the Collateral Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Collateral Agent may request;

(xxi) evidence of the payment in full of all Indebtedness under the Existing Credit Facilities, together with (A)   a termination and release agreement or deed of release (as applicable) with respect to each of the Existing Credit Facilities and all related documents, duly executed by the applicable Loan Parties and the Existing Lenders, (B)   a termination of security interest in intellectual property for each assignment for security recorded by the Existing Lenders at the United States Patent and Trademark Office or the United States Copyright Office and covering any intellectual property of the Loan Parties, and (C)   UCC -3 termination statements for all UCC-1 financing statements filed by the Existing Lenders and covering any portion of the Collateral;

 

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(xxii) copies of the Acquisition Documents and, to the extent requested by the Collateral Agent, of the other Material Contracts as in effect on the Effective Date, certified as true and correct copies thereof by an Authorized Officer of the Administrative Borrower, together with a certificate of an Authorized Officer of the Administrative Borrower stating that such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;

(xxiii) such other customary agreements, instruments, opinions and other documents, each reasonably satisfactory to the Collateral Agent in form and substance, as the Collateral Agent may reasonably request.

(e) Material Adverse Effect . No event or development shall have occurred since December 31, 2014 which constitutes a “Company Material Adverse Effect” (as defined in the Acquisition Agreement).

(f) Consummation of Acquisition . Concurrently with the making of the initial Loans, (i)  the Buyer shall have purchased pursuant to the Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived in a manner that is materially adverse to the Lenders’ interests) without the prior written consent of the Agents), and shall have become the owner, free and clear of all Liens, of all of the Acquisition Assets, (ii) the proceeds of the initial Loans shall have been applied in full to pay a portion of the Purchase Price payable pursuant to the Acquisition Documents for the Acquisition Assets and the closing and other costs relating thereto, and (iii) the Buyer shall have fully performed all of the obligations to be performed by it under the Acquisition Documents.

(g) Sponsor Investment . The Agents shall have received reasonably satisfactory evidence that the Permitted Holders made a cash equity contribution to Ultimate Parent of at least $118,000,000 plus fee and expenses related thereto (plus $26,900,000 of roll-over equity from existing management and $37,400,000 of roll-over equity from the Funko Sellers under the Acquisition Agreement) to effect the consummation of the Funko Acquisition.

(h) Availability . After giving effect to all Loans to be made on the Effective Date, the Letters of Credit to be issued on the Effective Date and the consummation of the Funko Acquisition (including the repayment of the Existing Credit Facilities), the Availability shall not be less than $20,000,000. The Administrative Borrower shall deliver to the Collateral Agent a certificate of the chief financial officer of the Administrative Borrower certifying as to the matters set forth above and containing the calculation of Availability.

 

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Section 5.02 Conditions Precedent to All Loans and Letters of Credit . The obligation of any Agent or any Lender to make any Loan or of the L/C Issuer to issue any Letter of Credit after the Effective Date is subject to the fulfillment of each of the following conditions precedent:

(a) Representations and Warranties; No Event of Default . The following statements shall be true and correct, and the submission by the Administrative Borrower to the Administrative Agent of a Notice of Borrowing with respect to each such Loan, and the Borrowers’ acceptance of the proceeds of such Loan, or the submission by the Administrative Borrower of a Letter of Credit Application with respect to a Letter of Credit, and the issuance of such Letter of Credit, shall each be deemed to be a representation and warranty by each Borrower on the date of such Loan or the date of issuance of such Letter of Credit that: (i) the representations and warranties contained in ARTICLE VI and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the date of such Loan or such Letter of Credit are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof (including the representations and warranties set forth in the final sentence of Section  6.01(g)(i)), which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)), (ii)  at the time of and after giving effect to the making of such Loan and the application of the proceeds thereof or at the time of issuance of such Letter of Credit, no Default or Event of Default has occurred and is continuing or would result from the making of the Loan to be made, or the issuance of such Letter of Credit to be issued, on such date and (iii)  the conditions set forth in this Section  5.02 have been satisfied as of the date of such request.

 

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(b) Notices . The Administrative Agent shall have received (i) a Notice of Borrowing pursuant to Section  2.02 hereof and (ii)  a Letter of Credit Application pursuant to Section  3.02(a) hereof, if applicable.

Section 5.03 Conditions Subsequent to Effectiveness . As an accommodation to the Loan Parties, the Agent and the Lenders have agreed to execute this Agreement and to make the Loans on the Effective Date notwithstanding unsatisfied conditions set forth below on or before the Effective Date. In consideration of such accommodation, the Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Agreement and the other Loan Documents, including, without limitation, those conditions set forth in Section 5.01, the Loan Parties shall satisfy each of the conditions subsequent set forth below on or before the date applicable thereto (it being understood that (i) the failure by the Loan Parties to perform or cause to be performed any such condition subsequent on or before the date applicable thereto shall constitute an Event of Default and (ii) to the extent that the existence of any such condition subsequent would otherwise cause any representation, warranty or covenant in this Agreement or any other Loan Document to be breached, the Required Lenders hereby waive such breach for the period from the Effective Date until the date on which such condition subsequent is required to be fulfilled pursuant to this Section 5.03):

(a) Within 45 days after the Effective Date (or such later date as may be permitted by the Agents in their sole discretion), the Agents shall have received Cash Management Agreements, each in form and substance reasonably satisfactory to the Agents, with respect to the Cash Management Accounts;

(b) Within 240 days of the Effective Date or such later date as may be agreed to by the Administrative Agent in its sole discretion, Parent shall have established master concentration account(s) with PNC for all of the Loan Parties’ Treasury Services. For purposes hereof, “Treasury Services” means demand deposit related services, investment services, deposits (on-site and remote), checking account services, lockbox services, controlled disbursement account services, manual payroll account services, account reconciliation services, foreign exchange services, debit card account services, ACH services, zero balance accounts, wire transfer services, and daily on-line reporting; and

(c) Within ten (10) Business Days following the Effective Date (or such later date as permitted by the Agents in their sole discretion), the Agents shall have received endorsements as to the named insureds, first mortgagees or loss payees under the insurance policies listed on Schedule 6.01(r) as required under Section  7.01(h) and providing that such policies may be terminated or canceled (by the insurer or the insured thereunder) only upon 30  days’ prior written notice to the Collateral Agent and each such named insured, first mortgagees or loss payee.

 

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ARTICLE VI.

REPRESENTATIONS AND WARRANTIES

Section 6.01 Representations and Warranties . Each Loan Party hereby represents and warrants to the Agents, the Lenders and the L/C Issuer as follows:

(a) Organization, Good Standing, Etc . Each Loan Party and each of its Subsidiaries (i)  is a corporation, limited liability company or limited partnership or other foreign business entity duly organized, validly existing and, where applicable, in good standing under the laws of the state or jurisdiction of its organization, (ii)  has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii)  is duly qualified to do business and, where applicable, is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, other than a jurisdiction where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.

(b) Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii)  do not and will not contravene any applicable Requirement of Law in any material respect or any of its Governing Documents or any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii)  do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv)  do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

(c) Governmental Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party.

 

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(d) Enforceability of Loan Documents . This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.

(e) Capitalization; Subsidiaries .

(i) On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and the issued and outstanding Equity Interests of the Parent are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent have been validly issued. Except as described on Schedule 6.01(e), as of the Effective Date, there are no outstanding debt or equity securities of the Parent and no outstanding obligations of the Parent convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent, or other obligations of the Parent to issue, directly or indirectly, any shares of Equity Interests of the Parent.

(ii) Schedule 6.01(e) is a complete and correct description of the name, jurisdiction of incorporation and ownership of the outstanding Equity Interests of such Subsidiaries of the Ultimate Parent in existence as of the Effective Date. All of the issued and outstanding shares of Equity Interests of such Subsidiaries have been validly issued and, in the case of any Subsidiary organized as a corporation under the laws of any jurisdiction of the United States, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as indicated on such Schedule, as of the Effective Date, all such Equity Interests is owned by the Ultimate Parent or one or more of its wholly-owned Subsidiaries, free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens that are consensual or contractual Liens). As of the Effective Date, there are no outstanding debt or equity securities of the Ultimate Parent or any of its Subsidiaries and no outstanding obligations of the Ultimate Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Ultimate Parent or any of its Subsidiaries, or other obligations of any Subsidiary to issue, directly or indirectly, any shares of Equity Interests of any Subsidiary of the Ultimate Parent.

 

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(f) Litigation; Commercial Tort Claims . Except as set forth in Schedule 6.01(f), (i)  there is no pending or, to the best knowledge of any Loan Party, threatened action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (A)  could reasonably be expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect or (B)  relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby and (ii)  as of the Effective Date, none of the Loan Parties holds any commercial tort claims in respect of which a claim has been filed in a court of law or a written notice by an attorney has been given to a potential defendant.

(g) Financial Condition .

(i) The Financial Statements, copies of which have been delivered to each Agent, fairly present the consolidated financial condition of Funko and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of Funko and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP (subject to the absence of footnotes and year-end adjustments in the case of the Financial Statements described in clause (b) of the definition of Financial Statements). Except as set forth on Schedule 6.01(g), all material indebtedness and other material liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long-term commitments), direct or contingent, of Funko and its Subsidiaries are set forth in the Financial Statements, but excluding any liabilities incurred in the ordinary course of business since the date of the last Financial Statements. Since December  31, 2014, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

(ii) Funko has heretofore furnished to each Agent and each Lender (A) (x) projected monthly income statements of Funko and its Subsidiaries for the period from January  1, 2015 through December  31, 2017 and (y)  projected quarterly balance sheets, statements of operations and statements of cash flows of Funko and its Subsidiaries for the period from January  1, 2015 through December  31, 2017, (B) projected annual balance sheets, income statements and statements of cash flows of the Funko and its Subsidiaries for the Fiscal Years ending on January  1, 2015 through December  31, 2019, which projected financial statements shall be updated

 

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from time to time pursuant to Section 7.01(a)(vii) and (C) projected annual budget for Funko and its Subsidiaries, prepared on a monthly basis. Such budget, as updated from time to time pursuant to Section 7.01(a)(viii), has been prepared on a reasonable basis and in good faith by Funko, and is based on assumptions believed by Funko to be reasonable at the time made (it being understood that projections are uncertain by their nature and may not be realized).

(h) Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii)  any domestic or foreign Requirement of Law, including, without limitation, any statute, legislation or treaty, any guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of any Governmental Authority, in each case, applicable to it or any of its property or assets, or (iii)  any material term of any Contractual Obligation (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties, except to the extent that any such violation described in subclause  (i) (solely in the case of a Subsidiary that it not a Loan Party), (ii) or  (iii) could not reasonably be expected to result in a Material Adverse Effect, and no Default or Event of Default has occurred and is continuing.

(i) ERISA . Except as set forth on Schedule 6.01(i), (i) each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii)  no Termination Event has occurred for which there remains any outstanding material liability nor is any such Termination Event reasonably expected to occur with respect to any Employee Plan, (iii)  the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Agents, is complete and correct and fairly presents the funding status of such Employee Plan as of the date of such report, and since the date of such report there has been no material adverse change in such funding status (other than resulting from changes in market value of assets of such Plan), (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service in the last two years with respect to any Employee Plan have been delivered to the Agents, (v)  no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section  412 of the Internal Revenue Code at any time during the previous 60  months, and (vi)  no Lien imposed under the Internal Revenue Code or

 

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ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. No Loan Party has incurred any withdrawal liability under ERISA with respect to any Multiemployer Plan that remains unsatisfied, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the future incur any such withdrawal liability. No Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (ii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course or claims that could not reasonably be expected to result in material liability) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan. Except as set forth on Schedule 6.01(i) and except as required by Section 4980B of the Internal Revenue Code or pursuant to executive employment agreements, as of the date hereof, no Loan Party or any of its Subsidiaries maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) for employees in the US which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or coverage after a participant’s termination of employment.

(j) Taxes, Etc. All national and Federal, and all material state, provincial and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party or any of its Subsidiaries have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries and which have become due and payable on or prior to the date hereof have been paid, except (i) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (ii) in the case of any Subsidiary that is not a Loan Party, relating to amounts that are not material. Each Loan Party is resident for Tax purposes only in the jurisdiction of its incorporation.

 

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(k) Regulations T, U and X . No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.

(l) Nature of Business .

(i) No Loan Party is engaged in any business other than as described on Schedule 6.01(l) and other business reasonably related or ancillary thereto.

(ii) The Parent is a holding company and does not have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments) or engage in any operations or business (other than the ownership of its Subsidiaries).

(m) Adverse Agreements, Etc . No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which has, or in the future could reasonably be expected to have, a Material Adverse Effect.

(n) Permits, Etc . Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business currently owned, leased, managed or operated, or to be acquired, by such Person, except where the failure to have, or be in compliance with, all such permits, licenses, authorizations, approvals, entitlements and accreditations could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of

 

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notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect, except where such suspension, revocation, impairment, forfeiture or non-renewal could not reasonably be expected to have a Material Adverse Effect.

(o) Properties . (i)  Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens. All such properties and assets are in good working order and condition for the purpose of the conduct of the business of the Loan Parties, ordinary wear and tear and casualty events excepted.

(ii) Schedule 6.01(o) sets forth a complete and accurate list, as of the Effective Date, of the location, by state and street address, of all real property owned or leased by each Loan Party and identifies the interest (fee or leasehold) of such Loan Party therein. As of the Effective Date, each Loan Party has valid leasehold interests in the Leases described on Schedule 6.01(o) to which it is a party. To the extent requested by the Administrative Agent, true, complete and correct copies of each such Lease have been delivered to the Agents prior to the Effective Date. Schedule 6.01(o) sets forth, as of the Effective Date, with respect to each such Lease, the commencement date, termination date, renewal options (if any) and annual base rents. As of the Effective Date, to the knowledge of the Loan Parties, each such Lease is valid and enforceable in accordance with its terms in all material respects and is in full force and effect. No consent or approval of any landlord or other third party in connection with any such Lease is necessary for any Loan Party to enter into and execute the Loan Documents to which it is a party, except as set forth on Schedule 6.01(o). To the best knowledge of any Loan Party, as of the Effective Date, no other party to any such Lease is in default of its material obligations thereunder, and no Loan Party (or any other party to any such Lease) has at any time delivered or received any notice of default which remains uncured under any such Lease and, as of the Effective Date, no event has occurred which, with the giving of notice or the passage of time or both, would constitute a default under any such Lease.

(p) Full Disclosure . None of the other reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or

 

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omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading; provided that, with respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time prepared.

(q) [ Intentionally omitted ].

(r) Environmental Matters . Except as set forth on Schedule 6.01(r), (i) the operations of each Loan Party are in compliance with all Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect; (ii)  there has been no Release at any of the properties owned or operated by any Loan Party or a predecessor in interest, or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iii)  no Environmental Action has been asserted against any Loan Party or any predecessor in interest nor does any Loan Party have knowledge or notice of any threatened or pending Environmental Action against any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (iv)  no Environmental Actions have been asserted against any facilities that may have received Hazardous Materials generated by any Loan Party or any predecessor in interest which could reasonably be expected to have a Material Adverse Effect; (v)  no property now or, to the knowledge of the Loan Parties as of the Effective Date, formerly owned or operated by a Loan Party has been used as a treatment or disposal site for any Hazardous Material; (vi)  no Loan Party has failed to report to the proper Governmental Authority any Release which is required to be so reported by any Environmental Laws which could reasonably be expected to have a Material Adverse Effect; (vii)  each Loan Party holds and is in compliance with all licenses, permits and approvals required under any Environmental Laws in connection with the operation of the business carried on by it, except for such licenses, permits and approvals as to which a Loan Party’s failure to maintain or comply with could not reasonably be expected to have a Material Adverse Effect; and (viii)  no Loan Party has received any written notification pursuant to any Environmental Laws that (A)  any work, repairs, construction or Capital Expenditures are required to be made as a condition of continued compliance with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (B)  any license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

 

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(s) Insurance . Each Loan Party keeps its property adequately insured and maintains (i) insurance to such extent and against such risks, including fire, as is customary with companies in the same or similar businesses, (ii)  workmen’s compensation insurance in the amount required by applicable law, (iii)  public liability insurance, which shall include product liability insurance, in the amount customary with companies in the same or similar business against claims for personal injury or death on properties owned, occupied or controlled by it, and (iv)  such other insurance as may be required by law (including, without limitation, against larceny, embezzlement or other criminal misappropriation). Schedule 6.01(s) sets forth a list of all insurance maintained by each Loan Party on the Effective Date.

(t) Use of Proceeds . From and after the Amendment No.  3 5 Effective Date, the proceeds of the Loans (other than the Term Loan B) shall be used to (a)   finance a portion of the Purchase Price for the Loungefly Acquisition and the closing and other costs and expenses related thereto, (b)  pay fees and expenses in connection with the transactions contemplated hereby and ( b c ) fund working capital and other general corporate purposes of the Borrowers. The proceeds of the Term Loan B shall be used on or around the Amendment No.   3 Effective Date to fund a distribution to be paid by the Ultimate Parent to its direct and indirect investors in an aggregate amount not to exceed $50,000,000. The Letters of Credit will be used for working capital and other general corporate purposes.

(u) Solvency . After giving effect to the transactions contemplated by this agreement and before and after giving effect to each Loan and Letter of Credit, the Loan Parties are Solvent on a consolidated basis. No Borrower is contemplating either an Insolvency Proceeding or the liquidation of all or a major portion of such Loan Party’s assets or property.

(v) Location of Bank Accounts . Schedule 6.01(v) sets forth a complete and accurate list as of the Effective Date of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each Loan Party, together with a description thereof ( i.e. , the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof).

(w) Intellectual Property . Except as set forth on Schedule   6.01(w), each Loan Party owns or licenses or otherwise has the right to use all patents, patent applications, trademarks, trademark

 

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applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other intellectual property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(w) is, except for commercially available, off the shelf software and intellectual property registered outside the United States, a complete and accurate list as of the Effective Date of all such material registered patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications, franchises, authorizations, non-governmental licenses and permits and other material registered intellectual property rights of each Loan Party. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened, except for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the best knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(x) Material Contracts . Set forth on Schedule 6.01(x) is a complete and accurate list as of the Effective Date of all Material Contracts of each Loan Party. As of the Effective Date, each such Material Contract (i)  is in full force and effect and is binding upon and enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, and (ii)  is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, of any other Person that could reasonably be expected to result in a Material Adverse Effect, any other party thereto.

(y) Investment Company Act . None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended, or (ii)  subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.

 

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(z) Employee and Labor Matters . As of the Effective Date, there is (i) no unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii)  no strike, labor dispute, slowdown, stoppage or similar action or grievance in existence or, to any Loan Party’s knowledge, pending or threatened against any Loan Party or (iii)  to the best knowledge of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing activity taking place with respect to any of the employees of any Loan Party. No Loan Party or any of its Subsidiaries has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act (“ WARN ”) or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of any Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from any Loan Party 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 such Loan Party, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. .

(aa) Customers and Suppliers . Except as could not reasonably be expected to result in a Material Adverse Effect, there exists no actual or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, or (ii)  any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand; and there exists no present state of facts or circumstances that could reasonably be expected to give rise to or result in any such termination, cancellation, limitation, modification or change.

(bb) [ Intentionally Omitted ].

(cc) Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN . Schedule 6.01(cc) sets forth a complete and accurate list as of the date hereof of (i) the exact legal name of each Loan Party, (ii)  the jurisdiction of organization of each Loan Party, (iii)   the organizational identification

 

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number of each Loan Party (or indicates that such Loan Party has no organizational identification number), (iv) each place of business of each Loan Party, (v) the chief executive office of each Loan Party and (vi) if applicable, the federal employer identification number of each Loan Party.

(dd) Locations of Collateral . There is no location at which any Loan Party has any Collateral (except for Inventory in transit) other than those locations listed on Schedule 6.01(dd) or Schedule 6.01(ee) and any other locations reported (or permitted to be exempt from reporting) pursuant to Section  7.01(a)(v).  Schedule 6.01(dd) hereto contains a true, correct and complete list, as of the Effective Date, of the legal names and addresses of each warehouse at which Collateral of each Loan Party is stored.

(ee) Security Interests . The Security Agreement creates in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, a legal, valid and enforceable security interest in the Collateral secured thereby. Upon the filing of the UCC-1 financing statements and the recording of the Collateral Assignments for Security referred to in each Security Agreement in the United States Patent and Trademark Office, the United States Copyright Office or the equivalent authority in the other relevant jurisdictions, as applicable, such security interests in and Liens on the Collateral granted thereby shall be perfected, to the extent perfection can be accomplished through such filings, first priority security interests subject only to Permitted Liens, and no further recordings or filings are or will be required to maintain such perfected status of such security interests and Liens, other than (i) the filing of continuation statements in accordance with applicable law and (ii)  the recording of the Collateral Assignments for Security pursuant to each Security Agreement in the United States Patent and Trademark Office, the United States Copyright Office or the equivalent authority, if any, in the other relevant jurisdictions, as applicable, with respect to after-acquired U.S.  patent and trademark applications and registrations and U.S. copyrights.

(ff) [ Intentionally Omitted]

(gg) Acquisition Documents . The Parent has delivered to the Agents complete and correct copies of the Acquisition Documents, including all schedules and exhibits thereto. The Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the Acquisition Documents by Parent and the Buyer, and, to the knowledge of

 

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Parent, each of the other parties thereto, has been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person. No material authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority is required for such sale other than such as have been obtained on or prior to the Effective Date or are not required to be obtained as a condition to closing thereunder. Each Acquisition Document is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms.

(hh) [ Intentionally Omitted ].

(ii) Anti-Terrorism Laws .

(i) General . None of the Loan Parties nor any Affiliates of any Loan Parties, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Terrorism Laws.

(ii) None of the Loan Parties, nor any Affiliates of any Loan Parties, or their respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is any of the following (each a “ Blocked Person ”):

(A) a Person that is blocked pursuant to any of the OFAC Sanctions Programs, including a Person named on OFAC’s list of Specially Designated Nationals and Blocked Persons;

(B) a Person that is owned or controlled by, or that owns or controls, or that is acting for or on behalf of, any Person described in (A), above;

(C) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; and

(D) a Person that is affiliated or associated with a Person described in (A)  through (C), above.

(iii) None of the Loan Parties, nor any of their agents acting in any capacity in connection with the Loans, Letters of Credit

 

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or other transactions hereunder, unless authorized by the U.S. Government (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any OFAC Sanctions Programs.

(iv) Without limiting or contradicting (or being limited or contradicted by) the foregoing, (x) no Covered Entity is a Sanctioned Person and (y) no Covered Entity, either in its own right or through any third party, (A) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (C) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.

ARTICLE VII.

COVENANTS OF THE LOAN PARTIES

Section 7.01 Affirmative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party will, unless the Required Lenders shall otherwise consent in writing:

(a) Reporting Requirements . Furnish to each Agent:

(i) as soon as available, and in any event within 30 days after the end of each fiscal month of the Borrowers commencing with the first fiscal month of the Borrowers ending after the Effective Date, internally prepared consolidated balance sheets, statements of operations and statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year, and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year (it being agreed that the requirements of this clause (A) shall not apply so long as there is no corresponding month in the preceding Fiscal Year that occurred after the Effective Date), and (B) the projections delivered pursuant to Section 7.01(a)(vii), all in reasonable detail, and, in the case of the financial statements, certified by an Authorized Officer of the Administrative Borrower as having been prepared on a basis consistent with prior practices and fairly presenting, in all material respects, the financial position of the Ultimate Parent and its Subsidiaries for such period, subject to the absence of footnotes and normal year-end adjustments;

 

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(ii) [reserved];

(iii) as soon as available, and in any event within 120 days (or, in the case of Fiscal Year 2015, 135 days) after the end of each Fiscal Year of the Ultimate Parent and its Subsidiaries, consolidated and consolidating balance sheets, consolidated and consolidating statements of operations and consolidated and consolidating statements of cash flows of the Ultimate Parent and its Subsidiaries as at the end of such Fiscal Year, and, with respect to such consolidated balance sheets, statements of operations, and statement of cash flow, accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted auditing standards, of one of the “Big Four” nationally recognized certified public accounting firms, McGladrey LLP, Grant Thornton LLP, BDO USA, LLP, Berntson Porter & Company PLLC or any other independent certified public accountants of recognized standing selected by the Ultimate Parent and reasonably satisfactory to the Agents (which opinion shall be without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit, or (z) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03);

(iv) (x) simultaneously with the delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a) or (y) within 15 days after delivery of the financial statements of the Ultimate Parent and its Subsidiaries required by clause (i) of this Section 7.01(a) for the fiscal months ending in March, June and September, commencing with the fiscal month ending on or about March 31, 2016, a certificate of an Authorized Officer of the Administrative Borrower (A) stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Ultimate Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Ultimate Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such

 

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compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the existence during such period of an Event of Default or Default or, if an Event of Default or Default existed, describing the nature and period of existence thereof and the action which the Ultimate Parent and its Subsidiaries propose to take or have taken with respect thereto and (B) (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03, (2) including a discussion and analysis of the financial condition and results of operations of the Ultimate Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the financial projections for such period and the figures for the corresponding period in the previous Fiscal Year and (3) attaching a schedule listing the Net Cash Proceeds from each Disposition and the amount of insurance proceeds or condemnation awards received by the Loan Parties during the immediately preceding fiscal quarter that are subject to the prepayment requirements set forth in Sections 2.05(c)(v) and (vii), respectively, and indicating whether such proceeds shall be used to purchase, replace, repair or restore properties or acquire assets used in such Person’s business within a period specified in such certificate not to exceed 180 days after the date of receipt of such proceeds and setting forth estimates of the amount of such proceeds to be so expended;

(v) as soon as available and in any event within 20 days after the end of each fiscal month of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, reports in form and detail reasonably satisfactory to the Agents and certified by the CFO, or other Authorized Officer of the Administrative Borrower as being accurate and complete (A) listing all Accounts Receivable of the Loan Parties as of the last day of such fiscal month, which shall include the amount and age of each such Account Receivable, showing separately those which are more than 30, 60, 90 and 120 days old and a description of all Liens, set-offs, defenses and counterclaims with respect thereto, together with a reconciliation of such schedule with the schedule delivered to the Agents pursuant to this clause (v)(A) for the immediately preceding fiscal month and such other information as any Agent may request, (B) listing all accounts payable of the Loan Parties as of the last day of such fiscal month which shall include the amount and age of each such account payable and such other information as any Agent may request, (C)  listing separately all Inventory and In-Transit Inventory of the Loan Parties as of the last day of such fiscal month, and containing a breakdown of such Inventory by type and amount, the cost value

 

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thereof (by location), the warehouse and production facility location; provided that, notwithstanding the foregoing, Loan Parties shall not be obligated or required to include in such Inventory reporting under this clause (C) any breakdown of Inventory located at any location(s) which are exempt from reporting under clause (2) of the final proviso to this sentence (but further provided that nothing in the foregoing proviso shall be interpreted or construed to contradict or limit or provide any exception to the provisions of clause (i) of the definition of Eligible Inventory, and without limiting the generality of such clause (i), the parties hereto agree that no Inventory at any location shall be Eligible Inventory unless Loan Parties have elected to include a breakdown of the Inventory at such location in the most recently delivered Borrowing Base Certificate), (D) including a current schedule of (x) all locations of vendors and processors (including the legal name (and any applicable trade name) of such vendor or processor and the full address of such location) at which any Inventory is currently located and/or is customarily located from time to time, and (y) all other locations in the United States at which any Collateral (other than inventory in transit and mobile equipment, and items located at the premises of other Persons for service or repair in the ordinary course of business) is kept (including, in the case of any such location not owned by Loan Parties, the legal name (and any applicable trade name) of the landlord, warehouseman, bailee or other owner/operator of such location and the full address of such location); provided that, notwithstanding anything to the contrary in the foregoing or in Section 6.01(dd) hereof, (1) it shall not be a violation of this Section 7.01(a)(v) or of Section 6.01(dd) for any Inventory or Collateral to be kept at any location not previously disclosed to Administrative Agent so long as such location is disclosed to Administrative Agent in the first monthly collateral reports delivered by Loan Parties under this clause (D) following the first date at which any such Inventory or Collateral is kept at such location, and (2) Loan Parties shall not be obligated to report or disclose any such location, and may keep Inventory or other Collateral at any such location despite such non-disclosure, to the extent the aggregate Book Value of all Inventory and fair market value of all other Collateral held at any such non-disclosed individual location does not exceed $500,000 at any one time and the aggregate Book Value of all Inventory and fair market value of all other Collateral held at all such non-disclosed locations does not exceed $2,500,000 in the aggregate at any one time; along with such other information as any Agent may request, all in detail and in form reasonably satisfactory to the Administrative Agent and (E) including appropriate details of the royalty accrual account, the prepaid royalty account and the deferred revenue account.

 

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(vi) as soon as available and in any event within 20 days after the end of each fiscal month (or, if (x)  an Event of Default has occurred and is continuing or (y)  average Availability is less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, within 3 Business Days after the end of each week, but only until such time as no Event of Default is continuing and the average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate) of the Ultimate Parent and its Subsidiaries commencing with the first fiscal month of the Ultimate Parent and its Subsidiaries ending after the Effective Date, a Borrowing Base Certificate, current as of the close of business on the last Business Day of the most recently ended month (or week, if applicable), supported by schedules showing the derivation thereof and containing such detail and other information the Administrative Agent may reasonably request from time to time, including, at any time when Eligible Special Inventory is permitted to be included in the calculation of the Borrowing Base, a schedule of the Eligible Special Inventory, itemizing the Book Value of the Eligible Special Inventory for each licensor in relation thereto; provided that (A)  the Borrowing Base set forth in the Borrowing Base Certificate shall be effective from and including the date such Borrowing Base Certificate is duly received by the Administrative Agent but not including the date on which a subsequent Borrowing Base Certificate is received by the Administrative Agent, unless the Administrative Agent disputes the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof by notice of such dispute to the Administrative Borrower, provided that the Borrowers at their discretion may provide an updated Borrowing Base Certificate establishing a new Borrowing Base level based on a report of weekly or daily application of sales, cash and credits on Accounts Receivable of the Borrowers and weekly change in volume and value of Inventory of the Borrowers and (B)  in the event of any dispute about the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof, the Administrative Agent’s good faith judgment shall control;

(vii) as soon as available and in any event not later than 30 days after the end of each Fiscal Year, financial projections for the Ultimate Parent and its Subsidiaries, supplementing and superseding the financial projections referred to in Section  6.01(g)(ii)(A), prepared on a monthly basis (in the case of income statements) and a quarterly basis (in the

 

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case of balance sheets, statement of operations and statement of cash flows) and otherwise in form and substance reasonably satisfactory to the Agents, for the immediately succeeding Fiscal Year for the Ultimate Parent and its Subsidiaries, all such financial projections to be prepared on a reasonable basis and in good faith, and to be based on assumptions believed by the Ultimate Parent to be reasonable at the time made and from the best information then available to the Ultimate Parent;

(viii) [reserved];

(ix) [reserved];

(x) promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party by such Governmental Authority other than routine inquiries or other inquires where liability is not reasonably expected to exceed $1,000,000, but excluding any such documents or information the delivery of which would violate applicable law or result in a breach of a Loan Party’s attorney-client privilege;

(xi) as soon as practicable, and in any event within 3 days after an Authorized Officer of any Loan Party becomes aware of the occurrence of an Event of Default or Default or the occurrence of any event or development that such Authorized Officer has determined could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;

(xii) (A) as soon as practicable and in any event within 10 days after any Loan Party or any its Subsidiaries thereof knows that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect to any Employee Plan sponsored by any Loan Party has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, (B) promptly and in any event within 3 days after receipt thereof by any

 

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Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, and (D) promptly and in any event within 3 days after receipt thereof by any Loan Party from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (E) promptly and in any event within 10 days after any Loan Party or any of its Subsidiaries thereof sends notice of a plan closing or mass layoff (as defined in WARN) to employees, copies of each such notice send by such Loan Party or any of its Subsidiaries;

(xiii) promptly, but in any event not later than 5 Business Days after, any determination by an Authorized Officer that an action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which could be reasonably expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect, notice thereof;

(xiv) as soon as practicable and in any event within 5 Business   Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives relating to a default or claimed default or termination in connection with any Material Contract or any Acquisition Document;

(xv) as soon as practicable and in any event within 5   Business   Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party;

(xvi) promptly after the sending or filing thereof, copies of any material notices not delivered in the ordinary course of business that any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange;

 

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(xvii) promptly upon receipt thereof, copies of any management letters, if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;

(xviii) promptly upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent may from time to time may reasonably request;

(xix) promptly upon learning thereof, such information concerning any material loss or destruction of, or substantial damage to, any of the Collateral, in excess of $1,000,000 and

(xx) promptly notify the Agents if the President, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer or Global Head of Sales of any Loan Party becomes aware of any Accounts Receivable of any Borrower in excess of $1,000,000 individually arises out of contracts with the federal government of the United States (or any other United States federal Governmental Authority) which are either (x)   eligible for assignment under the Federal Assignment of Claims Act or (y)   otherwise subject to an enforceable restriction on the assignment thereof under federal Law that would pre-empt the provisions of Section   9-406 of the Uniform Commercial Code, and in any such case, if applicable, such Borrower will execute any instruments and take any steps required by the Agents in order that either all monies due or to become due under any such Account Receivable shall be assigned to the Collateral Agent and notice thereof given to such Governmental Authority under the Federal Assignment of Claims Act or all necessary steps be taken to comply with such restrictions on assignment, as applicable.

(b) Additional Guaranties and Collateral Security. Cause :

(i) each Subsidiary (other than any Excluded Subsidiary) of any Loan Party that is not in existence on the Effective Date, to execute and deliver to the Collateral Agent promptly and in any event within 10   Business Days after the formation, acquisition or change in status thereof, (A)   a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Guarantor or a Borrower, as applicable (provided that the Accounts Receivable or Inventory of any new Borrower shall not be included in the Borrowing Base until the applicable conditions set forth in the definitions of Eligible Accounts Receivable and Eligible Inventory

 

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are satisfied), (B) a supplement to the Security Agreement, (C) one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien on such real property to the extent required by Section 7.01(o), and such other Real Property Deliverables as may be required by the Collateral Agent and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Documents or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations in a manner consistent with the assets of the other corresponding Loan Parties that constitute Collateral; and

(ii) each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 10 Business Days after the formation or acquisition of such Subsidiary a Pledge Amendment or other comparable document (as defined in the applicable Security Documents), together with (A) if applicable, certificates evidencing all of the Equity Interests of such Subsidiary, (B)  if applicable, undated stock powers or other appropriate instruments of assignment executed in blank with signature guaranteed, (C)  such opinions of counsel as the Collateral Agent may reasonably request and (D)  such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent.

(iii) Notwithstanding the foregoing, no CFC of a Loan Party shall be required to become a Loan Party hereunder (and, as such, shall not be required to deliver the documents required by clause (i) above) and no Equity Interests of such CFC shall be required to be pledged or otherwise subject to a Lien under the Loan Documents if in any such case (x)  adverse tax consequences could reasonably be expected to result therefrom or (y)  such guarantee is prohibited by any Requirement of Law; provided , however , that if the Equity Interests of such CFC are owned by a Loan Party, such Loan Party shall deliver, all such documents, instruments, agreements (excluding any pledge agreement or other security document governed by the laws of any jurisdiction other than a jurisdiction of the United States), and certificates described in clause (ii)  above to the Collateral Agent, and take all actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect a first-priority Lien (subject to Permitted Liens) in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, in sixty five percent (65%) of the voting Equity Interests of such CFC and one hundred percent (100%) of all other Equity Interests of such CFC owned by such Loan Party.

 

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(c) Compliance with Laws, Etc. (i)  Except as could not reasonably be expected to result in a Material Adverse Effect, comply and cause each of its Subsidiaries to comply, with all Requirements of Law (including, without limitation, all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), (ii) pay all national and Federal, and all material state and provincial taxes and governmental charges or levies imposed upon it or upon its income or profits or upon any of its properties, and (iii)  pay all lawful claims which if unpaid could reasonably be expected to become a Lien or charge upon any of its properties, in each case, except in the cause of clauses (i)  and (ii), (A) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (B)  any such taxes, assessments and governmental charges the aggregate amount of which does not exceed $20,000.

(d) Preservation of Existence, Etc. (i)  Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its (A) existence (except to the extent otherwise permitted to merge, dissolve or liquidate pursuant to this Agreement) and (B)  material rights and privileges, and (ii)  become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary unless the failure to comply with clause (i)(B) or to be so qualified and in good standing could not reasonably be expected to result in a Material Adverse Effect.

(e) Keeping of Records and Books of Account . Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

(f) Inspection Rights . Permit the Agents and representatives of any Agent at any time and from time to time during normal business and, so long as no Event of Default shall have occurred and be continuing and no Agent shall reasonably believe that an Event of

 

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Default has occurred and remains continuing, upon not less than 30 days’ prior notice, in a manner which reasonably endeavors to minimize disruption to the business of the Loan Parties and at the expense of the Borrowers (subject to the limitations set forth in Section 2.06(f)), to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals, (and, if reasonably requested under the circumstances, Phase I Environmental Site Assessments) or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives, in each case subject to the limitations set forth Section 2.06(f). In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).

(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary in the proper conduct of its business in good working order and condition, ordinary wear and tear (and casualty events) excepted, and except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.

(h) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and in any event in an amount, adequacy and scope reasonably satisfactory to the Agents. All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear, in case of loss, under a standard non-contributory “lender” or “secured party” clause and are to contain

 

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such other provisions as the Agents may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered to the Collateral Agent and the policies shall include a lender loss payable and additional insured endorsement in favor of the Collateral Agent and such other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ prior written notice (or 10 days’ prior written notice in the case of non-payment of premiums) to the Collateral Agent of the exercise of any right of cancellation. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrowers’ expense and without any responsibility on the Agents’ part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

(i) Obtaining of Permits, Etc. Except as could not reasonably be expected to result in a Material Adverse Effect, obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all material permits, licenses, authorizations, approvals, entitlements and accreditations which are necessary or useful in the proper conduct of its business.

(j) Environmental . (i)  Keep any property either owned or operated by it or any of its Subsidiaries free of any Environmental Liens for which any Loan Party is liable; (ii)  except as could not reasonably be expected to result in a Material Adverse Effect, comply, and cause each of its Subsidiaries to comply with all Environmental Laws and provide to the Collateral Agent any documentation of such compliance which the Collateral Agent may reasonably request; (iii)  (A) provide the Agents written notice within five (5)  Business Days of any Release of a Hazardous Material in excess of any reportable quantity from or onto property owned or operated by it or any of its Subsidiaries and which any Loan Party is required to report to a Governmental Authority under any applicable Environmental Law, except to the extent that the failure to issue such Report could not reasonably be expected to result in liability in excess of

 

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$500,000 and, (B) to the extent required by Environmental Laws in order to ensure material compliance therewith, take any Remedial Actions required to abate said Release, except to the extent that the failure to abate said Release could not reasonably be expected to result in a Material Adverse Effect; and (iv) provide the Administrative Agent with written notice within 10 days of the receipt of any of the following: (A) notice that an Environmental Lien has been filed against any property of any Loan Party or any of its Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Loan Party or any of its Subsidiaries; and (C) notice of a violation, citation or other administrative order which could reasonably be expected to have a Material Adverse Effect.

(k) Further Assurances . Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may reasonably require from time to time in order (i)  to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii)  to subject to valid and perfected first priority Liens any of the Collateral or any other property of any Loan Party and its Subsidiaries that is required to be included in the Collateral, (iii)  to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Agent, each Lender and the L/C Issuer the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document. In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i)  authorizes each Agent to execute any such agreements, instruments or other documents in such Loan Party’s name and to file such agreements, instruments or other documents in any appropriate filing office, (ii)  authorizes each Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii)  ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the date hereof.

(l) Change in Collateral; Collateral Records . Advise the Agents promptly, in sufficient detail, of any material adverse change relating to the Lien granted on any Collateral.

 

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(m) Landlord Waivers; Collateral Access Agreements . (i) At any time (a)  any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at such locations) or (b)  any books and records of Loan Parties (other than books and records that are duplicative of those maintained at other locations) are located on any real property of a Loan Party (whether such real property is now existing or acquired after the Effective Date) which is not owned by a Loan Party, use commercially reasonable efforts to obtain written subordinations or waivers, in form and substance reasonably satisfactory to Collateral Agent, of all present and future Liens to which the owner or lessor of such premises may be entitled to assert against the Collateral; provided that in the event the Loan Parties are unable to obtain any such written subordination or waiver with respect to any such location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception) or any such location at which books and records are located (which books and records are not duplicative of those at any other location for which Reserves have been imposed or for which a subordinated or waiver contemplated by this paragraph has been obtained), the Administrative Agent may, in its Permitted Discretion, establish such Reserves as it deems necessary (in any event not to exceed three months rent for the applicable location) with respect to such location not earlier than 90 days after the Effective Date; and

(ii) At any time any Collateral with an aggregate book value in excess of the Dollar Equivalent of $1,000,000 (when aggregated with all other Collateral at all such locations) is stored on the premises of a bailee, warehouseman, or similar party (excluding any vendor or processor), use commercially reasonable efforts to obtain written access agreements, in form and substance reasonably satisfactory to the Collateral Agent, providing for access to such Collateral located on such premises in order to remove such Collateral from such premises during an Event of Default; provided that in the event the Loan Parties are unable to obtain, or, in the case of any vendor or processor location, chose not to obtain, any such written access agreements with respect to any location at which any Collateral included in the Borrowing Base is located (without regard to the foregoing $1,000,000 exception or exception for vendor and processor locations), the Administrative Agent may, in its reasonable discretion, establish such Reserves as it deems necessary (in any event not to exceed three months of bailee fees, warehouseman fees, processing fees or similar fees owing to such bailee, warehouseman, vendor, processor or similar party for the applicable location) with respect to such location not earlier than 90 days after the Effective Date.

 

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(n) Subordination . Cause all Indebtedness and other obligations now or hereafter owed by it to any of its Affiliates (other than, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout and the Funko Earnout Preferred Equity), to be subordinated in right of payment and security to the Indebtedness and other Obligations owing to the Agents and the Lenders in accordance with the Intercompany Subordination Agreement, the Acon Notes Subordination Agreement or such other applicable subordination agreement in form and substance reasonably satisfactory to the Agents.

(o) After Acquired Real Property . Upon the acquisition by any Loan Party after the date hereof of any fee interest in any real property (wherever located) (each such interest being a “ New Facility ”) with a Current Value (as defined below) in excess of $500,000, promptly so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the “ Current Value ”). The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage and the other Real Property Deliverables. Upon receipt of such notice requesting a Mortgage, the Person that has acquired such New Facility shall promptly furnish to the Collateral Agent each of the applicable Real Property Deliverables, reasonably requested by the Collateral Agent. The Borrowers shall pay all fees and expenses, including reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section  7.01(o).

(p) Fiscal Year . Cause the Fiscal Year of the Ultimate Parent and its Subsidiaries to end as set forth in the definition of “Fiscal Year” unless the Agents consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).

(q) [reserved].

(r) Lender Meetings . Upon the request of any Agent or the Required Lenders (which request, so long as no Event of Default shall have occurred and be continuing, shall not be made more than once during each Fiscal Year), participate in a meeting with the Agents and the Lenders at the Borrowers’ corporate offices (or at such other location as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders) at such time as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders.

 

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(s) Post-Closing Covenant. To the extent not executed and delivered on or before the Amendment No. 5 Effective Date, unless otherwise agreed by the Required Lenders in their sole discretion, Loungefly shall execute, deliver to the Collateral Agent a deposit account control agreement for all deposit accounts held by Loungefly at Wells Fargo Bank, N.A. within 60 days after the Amendment No. 5 Effective Date (or such later date as may be permitted by the Required Lenders in their sole discretion) in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent. To the extent any representation and warranty would not be true or any provision of any covenant would be breached in this Agreement or any other Loan Document because the action required by this Section 7.01(s) was not taken on or prior to the Amendment No. 5 Effective Date, the respective representation and warranty shall be required to be true and correct in all material respects and the respective covenant complied with at the time the action is taken (or was required to be taken) in accordance with this Section 7.01(s).

Section 7.02 Negative Covenants . So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Subsidiaries that are Loan Parties as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof); sell any of its property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable) with recourse to it or any of its Subsidiaries; other than, as to all of the above, Permitted Liens; provided, that, no Liens shall be permitted on any assets included in the Borrowing Base other than (i) the Liens of the Collateral Agent for the benefit of the Agents and the Lenders, and (ii)  non-consensual liens arising by operation of applicable Law (and not under any contract) that are otherwise Permitted Liens and which are either (x)  inchoate or (y)  junior to the Liens of the Collateral Agent for the benefit of the Agents and the Lenders (provided that Administrative Agent may impose Reserves with respect to any Liens under this subclause (y)).

 

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(b) Indebtedness . Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.

(c) Fundamental Changes; Dispositions . Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell, lease or sublease, transfer, assign or otherwise dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets (including accounts and rights to receive income), whether now owned or hereafter acquired (or agree to do any of the foregoing), or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided , however , that

(i) any wholly-owned Subsidiary of any Loan Party (other than Ultimate Parent or the Parent) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would be violated thereby, (B)  such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C)  no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D)  the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger or consolidation and (E)  in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation;

(ii) any Loan Party and its Subsidiaries may (A) sell Inventory in the ordinary course of business, (B) dispose of obsolete, worn-out or surplus equipment in the ordinary course of business, (C) sell or otherwise dispose of other property or assets (other than Accounts Receivable or Inventory of any Loan Party) for an aggregate amount not less than the fair market value of such property or assets, so long as (x)  at least 85% of the

 

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consideration for each such Disposition is for cash and (y) the Loan Parties will be in compliance with the financial covenants set forth in Section 7.03 calculated on a pro forma basis to give effect to such Disposition, (D) consummate any transactions constituting a Permitted Investment, (E) use or transfer money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, and (F) enter into non-exclusive license agreements with respect to intellectual property rights in the ordinary course of business, provided that the Net Cash Proceeds of such Dispositions (1) in the case of clause (C) above, do not exceed $2,500,000 in the aggregate in any Fiscal Year and (2) in all cases, the applicable requirements of Section 2.05(c)(v) are satisfied;

(iii) any dormant Subsidiary of any Loan Party (other than a Borrower or the Parent), owning assets the aggregate value of which does not exceed $100,000 at any time, may wind-up, liquidate or dissolve, so long as (A) no other provision of this Agreement would be violated thereby, (B)  in the case of any wind-up, liquidation or dissolution involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such winding up, liquidation or dissolution, (C)  no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such dissolution or liquidation and (E)  the aggregate value of all such dormant Subsidiaries that wind-up, liquidate or dissolve does not exceed $500,000; and

(iv) any Subsidiary of any Loan Party (other than Ultimate Parent or the Parent), may merge with any Person in connection with a Permitted Acquisition, so long as (A)  no other provision of this Agreement would be violated thereby, (B)  in the case of a merger involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C)  no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D)  the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger and (E)  in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation.

 

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(d) Change in Nature of Business .

(i) Make, or permit any of its Subsidiaries to make, any change in the nature of its business as described in Section  6.01(l).

(ii) Permit the Parent to have any material liabilities (other than liabilities arising under the Loan Documents, liabilities imposed by law, including tax liabilities, obligations under any employment agreement, stock option plan or other benefit plan for management or employees of the Parent and its Subsidiaries, and other liabilities (not including Indebtedness) incidental to its existence and permitted business and activities), engage in any operations or business (other than the ownership of its Subsidiaries), or own any material assets (other than the ownership of Equity Interests of its Subsidiaries and activities incidental thereto, including corporate maintenance activities (including the payment of expenses) associated with being a holding company for a consolidated group, cash and Permitted Investments).

(e) Loans, Advances, Investments, Etc. Make or commit or agree to make, or permit any of its Subsidiaries make or commit or agree to make (other than non binding commitments or commitments contingent upon the Payment in Full of the Obligations or the obtaining of the requisite approvals hereunder), any Investment in any other Person except for Permitted Investments.

(f) Lease Obligations . Create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction (other than any existing sale and leaseback transaction in effect on the Effective Date), or (ii)  for the payment of rent for any real or personal property under leases or agreements to lease other than Operating Lease Obligations entered into in the ordinary course of business and Capitalized Lease Obligations otherwise permitted hereunder.

(g) [Reserved].

(h) Restricted Payments . (i) Declare or pay any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter

 

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outstanding, (ii) make any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any of its Subsidiaries or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (iii) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (iv) return any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (v) pay any management fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting or other services agreement to any of the shareholders or other equity holders of any Loan Party or any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party; provided , however , that (A) (I) the Loan Parties may make payments to or on behalf Parent or Ultimate Parent in an amount sufficient to pay franchise taxes and other costs and expenses required to be paid to maintain the legal existence of Parent and Ultimate Parent, solely to the extent such payments are actually applied to pay such franchise taxes, costs and expenses, (II) the Loan Parties may make payments to or on behalf of Parent and Ultimate Parent in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent and Ultimate Parent, in the case of this subclause (A)(II), in an aggregate amount not to exceed $100,000 in any Fiscal Year and (III) the Loan Parties may make tax distributions to or on behalf of the Ultimate Parent in amounts sufficient to enable Ultimate Parent to make all tax distributions required pursuant to the Funko LLC Agreement (it being understood that, if an Event of Default has occurred and is continuing, to the extent any such tax distributions made in accordance with Funko LLC Agreement results in distributions to (or for the account of) the Permitted Holders in excess of amounts required to be paid by the Permitted Holders in relation to the tax liabilities of its direct and indirect investors, the Permitted Holders shall cause such excess amount to be held by ACON Funko Investors, L.L.C. or a newly formed subsidiary that shall be a Guarantor (with recourse limited to the deposit account holding any such excess amount) in a controlled deposit account pledged to the Collateral Agent, and such excess amounts may be used to make equity contributions to the Borrower or to fund tax distributions to the Permitted Holders that would otherwise be permitted to be distributed by the Borrower to the extent such distributions are not

 

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duplicative of future permitted tax distributions made by the Loan Parties to their equity holders), (B) any Subsidiary of any Borrower may pay dividends to any Loan Party (other than the Parent or Ultimate Parent) or, in the case of any Subsidiary that is not a Loan Party, to any other Subsidiary, (C) the Parent and Ultimate Parent may pay dividends in the form of Qualified Equity Interests, (D) the Parent may pay Permitted Management Fees, so long as in the case of all such Permitted Management Fees other than reimbursement of expenses described in clause (b) of the definition of Permitted Management Fees: (1) no Default or Event of Default shall have occurred and be continuing, or would result from the making of such payment and (2) the Loan Parties would have been in compliance with the financial covenants set forth in Section 7.03 on a pro forma basis as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered under Section 7.01(a) after giving effect to such payment (as if made on the first day of such period); provided that to the extent that any Permitted Management Fees cannot be paid as a result of not satisfying all of the conditions described in clauses (1) and (2) above, such Permitted Management Fees shall be permitted to accrue and be paid at such time when (I) all conditions described in clauses (1) and (2) above are satisfied both before and after giving effect to such payment and (II) Availability is not less than ten percent (10%) of the then-existing Maximum Revolving Loan Amount after giving effect to such payment, (E) the Loan Parties may make dividends, distributions or other payments for the purpose of making Permitted Funko Earnout Payments and the Underground Toys Earnout, (F) the Loan Parties may make dividends, distributions or other payments for the purpose of allowing the Ultimate Parent to make payments or redemptions in respect of all or a portion of the Funko Earnout Preferred Equity (and Ultimate Parent may make such payment or redemption); provided, that any amounts funded by the Parent to the Ultimate Parent for such purpose may not be paid in cash if, at the time of the making of any such payment or after giving effect to the making of any such payment, (i) there exists an Event of Default or (ii) Availability is less than $15,000,000 (in which case the payment of such amount in cash shall be permitted at such time as the conditions described in clauses (i) and (ii) are no longer continuing), (G) the Loan Parties may pay the Funko Transaction Costs incurred in connection with the closing on the Effective Date, (H) the Loan Parties may make distributions to the Ultimate Parent solely to enable the Ultimate Parent to, and the Ultimate Parent may, pay a distribution in an amount not to exceed $50,000,000 on the Amendment No. 1 Effective Date or within five (5) Business Days thereof, (I) the Loan Parties may make distributions to the Ultimate Parent solely to enable the Ultimate Parent to, and the Ultimate Parent may, pay a distribution in an amount not to exceed $50,000,000 on the Amendment No. 3 Effective Date

 

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or within five (5) Business Days thereof and (J) non-cash repurchases of any Equity Interests in Ultimate Parent in exchange for the termination, reduction or forgiveness of loans and advances of funds used to purchase such Equity Interests in accordance with clause (j) of the definition of “Permitted Investments”, and any further distributions to the Ultimate Parent of the Equity Interests that are acquired in such transaction.

(i) Federal Reserve Regulations . Permit any Loan or the proceeds of any Loan under this Agreement to be used for any purpose that would cause such Loan to be a purpose credit under the provisions of Regulation T, U or X of the Board.

(j) Transactions with Affiliates . Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) in the ordinary course of business in a manner and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof, (ii)  transactions with another Loan Party or transactions among Subsidiaries not involving any Loan Party, (iii)  transactions permitted by Section  7.02(e) and Section  7.02(h), (iv) sales of Qualified Equity Interests of the Ultimate Parent to Affiliates of the Ultimate Parent not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in connection therewith and (v)  transactions contemplated by the Acon Subordinated Note.

(k) Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries . Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii)  to pay or prepay or to subordinate any Indebtedness owed to any Loan Party or any of its Subsidiaries, (iii)  to make loans or advances to any Loan Party or any of its Subsidiaries or (iv)  to transfer any of its property or assets to any Loan Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the foregoing; provided , however , that nothing in any of clauses (i)  through (iv) of this Section  7.02(k) shall prohibit or restrict compliance with:

 

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(A) this Agreement and the other Loan Documents;

(B) any agreements in effect on the date of this Agreement and described on Schedule 7.02(k) to the extent any encumbrance or restriction contained therein could reasonably be expected to have an adverse impact in any material respect on the interests of any Loan Party, the Agents or the Lenders;

(C) any applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);

(D) in the case of clause (iv), any agreement setting forth customary restrictions on the subletting, assignment or transfer of any property or asset that is the subject of any lease, license, conveyance, sale or similar transaction; or

(E) in the case of clause (iv), any agreement, instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto.

(l) Limitation on Issuance of Equity Interests . Except for Dispositions permitted by Section 7.02(c), issue or sell, or permit any of its Subsidiaries to issue or sell, any shares of its Equity Interests, any securities convertible into or exchangeable for its Equity Interests or any warrants; provided that the Ultimate Parent may issue Qualified Equity Interests so long as no Change of Control would result therefrom and any Subsidiary of the Ultimate Parent may issue Equity Interests to any Loan Party or any Subsidiary thereof.

(m) Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.

(i) Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any Indebtedness of a Loan Party or of any instrument or agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would (A) shorten the final maturity or average life to maturity of, or require any payment to be made earlier than the date originally scheduled on, such Indebtedness, (B) change the subordination provision, if any, of such Indebtedness in a manner adverse to the Lenders, or (C) otherwise be on terms and conditions that, taken as a whole, are adverse to the Lenders in any material respect.

 

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(ii) (A) except for (w) intercompany loans, (x)  the Obligations, (y)  the termination of Capitalized Leases in respect of assets no longer used in the business of any Loan Party and (z)  Indebtedness of any Subsidiary that is not a Loan Party, make any voluntary or optional payment (including, without limitation, any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any Indebtedness for borrowed money of any Loan Party (including, without limitation, by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Indebtedness when due), or refund, refinance, replace or exchange any other Indebtedness for any such Indebtedness (except to the extent such Indebtedness is otherwise permitted by the definition of “Permitted Indebtedness”), or (B)  make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of the Acon Subordinated Indebtedness in violation of the subordination provisions thereof or the Acon Notes Subordination Agreement (it being understood and agreed that Ultimate Parent may make Acon Subordinated Indebtedness Permitted Payments in accordance with the terms of the Acon Notes Subordination Agreement), or any other Subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement with respect thereto;

(iii) amend, modify or otherwise change its name, jurisdiction of organization, organizational identification number or FEIN, except that a Loan Party may (A) change its name, jurisdiction of organization, organizational identification number or FEIN in connection with a transaction permitted by Section  7.02(c) and (B)  change its name upon at least 15 days’ prior written notice by the Administrative Borrower to the Collateral Agent (or such shorter period as may be approved by the Collateral Agent in its sole discretion) of such change and so long as, at the time of such written notification, such Person provides any financing statements or fixture filings necessary to perfect and continue perfected the Collateral Agent’s Liens;

(iv) amend, modify or otherwise change any of its Governing Documents, including, without limitation, by the filing or modification of any certificate of designation, or any agreement or

 

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arrangement entered into by it, with respect to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iv) that either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or

(v) agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment, modification, change or waiver would be adverse in any material respect to any Loan Party or any of its Subsidiaries or the Agent and the Lenders.

(n) Investment Company Act of 1940 . Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its Subsidiaries to become subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

(o) Compromise of Accounts Receivable . Compromise or adjust any material amount of the Accounts Receivable (or extend the time of payment with respect to any material amount of the Accounts Receivable), or accept any material returns of Inventory or grant any material discounts, allowances or credits or permit any of its Subsidiaries that are Loan Parties to do so other than as may be approved by the Administrative Agent in its sole discretion or (x) in the ordinary course of its business or (y)  any such action outside the ordinary course of business made in the commercially reasonable business judgment of any Borrower exercised in good faith provided that (1)  no such non-ordinary course of business action may involve any amount exceeding $5,000,000 in any one case and (2)  in the event any one or more action(s) occurring during any period between delivery of Borrowing Base Certificates that involves an amount of $500,000 individually or in the aggregate in respect of Eligible Accounts Receivable that were included in the most recently delivered Borrower Base Certificate, Borrowers will deliver an updated Borrowing Base Certificate to Administrative Agent within five (5)  Business Days.

(p) [reserved].

(q) ERISA .

 

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(i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section  4069 of ERISA; (ii)  fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; or (iii)  fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section  412 of the Internal Revenue Code on or before the due date for such installment or other payment.

(ii) Non-U.S. Plan . Fail to make any contribution required by applicable law or by the terms of any Non-U.S. Plan

(r) Environmental . Except as could not reasonably be expected to result in a Material Adverse Effect, permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned or leased by it or any of its Subsidiaries, except in compliance with Environmental Laws.

(s) Limitations on Negative Pledges . Enter into, incur or permit to exist, or permit any Loan Party to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Loan Party to create, incur or permit to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following: (i) this Agreement and the other Loan Documents, (ii)  restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section  7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii)  any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, (iv)  customary provisions in leases, licenses and contracts restricting the assignment or sublet thereof, and (v)  restrictions arising under applicable law.

(t) Anti-Terrorism Laws . (i) None of the Loan Parties, nor any of their Affiliates or agents shall:

(A) conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person in violation of any Anti-Terrorism Law,

 

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(B) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the OFAC Sanctions Programs in violation of any Anti-Terrorism Law, or

(C) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the OFAC Sanctions Programs, the USA PATRIOT Act or any other Anti-Terrorism Law.

(ii) The Borrowers shall deliver to the Lenders any certification or other evidence reasonably requested from time to time by any Lender in its Permitted Discretion, confirming the Borrowers’ compliance with this Section  7.02(t).

(iii) Without limiting or contradicting (or being limited or contradicted by) the foregoing, Loan Parties further covenants and agree that: (i) no Covered Entity will engage in activities that provide basis for designation as a Sanctioned Person, (ii)  no Covered Entity, either in its own right or through any third party, will (A)  have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (C)  engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (D)  use the Loans to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law, (iii)  the funds used to repay the Obligations will not be derived from any unlawful activity, (iv)  each Covered Entity shall comply with all Anti-Terrorism Laws and (v)  the Borrowers shall promptly notify the Agent in writing upon the occurrence of a Reportable Compliance Event.

Section 7.03 Financial Covenants . So long as the Obligations have not been Paid in Full, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing:

(a) Senior Leverage Ratio . Permit the Senior Leverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be greater than the ratio set forth opposite such date:

 

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Fiscal Quarter Ending On or About

   Senior Leverage Ratio

March 31, 2016

   2.35:1.00

June 30, 2016

   2.97:1.00

September 30, 2016

   3.76:1.00

December 31, 2016

   3.56:1.00

March 31, 2017

   3.40:1.00

June 30, 2017

   3.26 3.50 :1.00

September 30, 2017

   3.25 3.50 :1.00

December 31, 2017

   3.08:1.00

December March 31, 2017 2018 and each Fiscal Quarter ended thereafter

   2.83:1.00

(b) Fixed Charge Coverage Ratio . Permit the Fixed Charge Coverage Ratio of the Ultimate Parent and its Subsidiaries, measured for the four consecutive Fiscal Quarter period ending as of the last day of each Fiscal Quarter of the Ultimate Parent and its Subsidiaries set forth below, to be less than the ratio set forth opposite such date:

 

Fiscal Quarter Ending On or About

   Fixed Charge Coverage Ratio

March 31, 2016

   1.05:1.00

June 30, 2016

   1.05:1.00

September 30, 2016

   1.05:1.00

December 31, 2016

   1.10:1.00

March 31, 2017

   1.10:1.00

June 30, 2017

   1.10:1.00

September 30, 2017

   1.10:1.00

December 31, 2017 and each Fiscal Quarter ended thereafter

   1.10:1.00

 

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ARTICLE VIII.

MANAGEMENT, COLLECTION AND STATUS OF

ACCOUNTS RECEIVABLE AND OTHER COLLATERAL

Section 8.01 Collection of Accounts Receivable; Management of Collateral . (a) The Loan Parties shall (i) establish and maintain cash management services of a type and on terms reasonably satisfactory to the Agents (it being understood that the cash management services in effect on the Effective Date are satisfactory to the Agents) at one or more of the banks set forth on Schedule 8.01 (each a “ Cash Management Bank ”) and (ii) deposit or cause to be deposited promptly, and in any event no later than the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral, all Collections (of a nature susceptible to a deposit in a bank account), and all other amounts received by any Loan Party (including payments made by Account Debtors directly to any Loan Party and remittances on credit card sales) into a Cash Management Account.

(b) Subject to Section   5.03(a) and 8.01(a), and except as otherwise agreed by the Agents, the Loan Parties shall, with respect to each Cash Management Account, deliver to the Collateral Agent a Cash Management Agreement with respect to such Cash Management Account. The Loan Parties shall not maintain cash, Cash Equivalents or other amounts in any deposit account or securities account, unless the Collateral Agent shall have received a Cash Management Agreement in respect of each such deposit account or securities account (other than accounts excluded from the definition of “Cash Management Accounts”).

(c) [ Intentionally Omitted].

(d) Upon the terms and subject to the conditions set forth in a Cash Management Agreement with respect to a Cash Management Account, all amounts received in such Cash Management Account shall at the Collateral Agent’s direction be wired each Business Day into the applicable Administrative Agent’s Account, except that, so long as (i)   no Event of Default has occurred and is continuing and (ii)   average Availability is greater than ten percent (10%) of the then-existing Maximum Revolving Loan Amount during any consecutive 30 day period based on the most recently delivered Borrowing Base Certificate, no Agent will direct any Cash Management Bank to transfer funds in such Cash Management Account to the Administrative Agent’s Account. If the Collateral Agent is sweeping cash from the Cash Management Accounts into the Administrative Agent’s Account in accordance with the immediately preceding sentence, the Collateral Agent shall discontinue

 

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such cash sweep and allow the Loan Parties to withdraw cash from the Cash Management Accounts so long as (A) average Availability exceeds ten percent (10%) of the then-existing Maximum Revolving Loan Amount over 60 consecutive days based on the most recently delivered Borrowing Base Certificate and (B) the Cash Management Bank allows for the reversion of such cash dominion. For the avoidance of any doubt, during any cash dominion period as provided for in the preceding sentence, (x) Administrative Agent may sweep cash from any Cash Management Account maintained with Administrative Agent to the Administrative Agent’s Account, and may request that Collateral Agent (and upon any such request Collateral Agent shall) sweep cash from the Cash Management Accounts maintained with any bank or financial institution other than Administrative Agent to the Administrative Agent’s Account.

(e) So long as no Default or Event of Default has occurred and is continuing, the Borrowers may, upon notice to the Collateral Agent, amend Schedule 8.01(A) to add or replace a Cash Management Bank or Cash Management Account; provided , however , that (i)   such prospective Cash Management Bank shall be reasonably satisfactory to the Collateral Agent, and except in the case of accounts established with the Administrative Agent, the Collateral Agent shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii)   prior to the time of the opening of such Cash Management Account, the applicable Loan Party and such Cash Management Bank shall have executed and delivered to the Collateral Agent a Cash Management Agreement. Each Loan Party shall close any of its Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event, to the extent reasonably practicable, within 30 days of notice from the Collateral Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion, or that the operating performance, funds transfer, or availability procedures or performance of such Cash Management Bank with respect to Cash Management Accounts or the Collateral Agent’s liability under any Cash Management Agreement with such Cash Management Bank is no longer acceptable in any Agent’s Permitted Discretion.

(f) The Cash Management Accounts shall be cash collateral accounts, with all cash, checks and similar items of payment in such accounts securing payment of the Obligations, and in which the Loan Parties are hereby deemed to have granted a Lien to the Collateral Agent for the benefit of the Agents and the Lenders. All checks, drafts, notes,

 

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money orders, acceptances, cash and other evidences of Indebtedness received directly by any Loan Party from any of its Account Debtors, as proceeds from Accounts Receivable of such Loan Party or (subject to the provisions of Section 2.05(c)(v) and (vii) with respect to the proceeds of Dispositions) as proceeds of any other Collateral shall be held by such Loan Party in trust for the Agents and the Lenders and if of a nature susceptible to a deposit in a bank account, upon receipt be deposited by such Loan Party in original form and no later than the next Business Day after receipt thereof into a Cash Management Account. During any time when the Agents are sweeping cash from the Cash Management Accounts pursuant to Section 8.01(d) above, no Loan Party shall commingle such collections with the proceeds of any assets not included in the Collateral. No checks, drafts or other instrument received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such instruments have actually been collected.

(g) Nothing herein contained shall be construed to constitute any Agent as agent of any Loan Party for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.

Section 8.02 Covenant Re-Dating; Pledge of Credit . (a) No Loan Party shall re-date any invoice or sale or make sales on extended dating beyond that which is customary in the ordinary course of its business and in the industry; and (b) no Loan Party is or shall be entitled to pledge any Agent’s or any Lender’s credit on any purchases or for any purpose whatsoever.

Section 8.03 Collateral Custodian . Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent or its designee may at any time and

 

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from time to time employ and maintain on the premises of any Loan Party a custodian selected by the Collateral Agent or its designee who shall have full authority to do all acts necessary to protect the Agents’ and the Lenders’ interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate with any such custodian and to do whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral. All costs and expenses incurred by the Collateral Agent or its designee by reason of the employment of the custodian shall be the responsibility of the Borrowers and charged to the Loan Account.

ARTICLE IX.

EVENTS OF DEFAULT

Section 9.01 Events of Default . If any of the following Events of Default shall occur and be continuing:

(a) any Borrower shall fail to pay any principal of or interest on any Loan, any Agent Advance, any Reimbursement Obligation or any fee, indemnity or other amount payable under this Agreement or any other Loan Document when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and, in the case of interest, fees and indemnities, such failure continues for a period of three Business Days; provided that, in the case of any mandatory prepayment of principal in respect of the Revolving Loans under Section   2.05(c)(i) that becomes due and payable solely because of the imposition by Administrative Agent of a new Reserve, no Event of Default shall arise under this paragraph (a)   until any failure to pay such mandatory prepayment shall continue for a period of ten (10)   Business Days;

(b) any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C   Issuer pursuant to any Loan Document, which representation or warranty is subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any respect when made or deemed made; or any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any report, certificate or other document delivered to any Agent, any Lender or the L/C   Issuer pursuant to any Loan Document, which representation or warranty is not subject to a materiality or a Material Adverse Effect qualification, shall have been incorrect in any material respect when made or deemed made;

 

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(c) any Loan Party shall fail to perform or comply with any covenant or agreement contained in (i)   Sections 7.01(a)(xi), 7.01(d)(i)(A), 7.01(f), 7.01(n), 7.02, 7.03 or ARTICLE VIII, (ii)   Section   7.01(a)(xii) and Section   7.01(b), and such failure, if capable of being remedied, shall remain unremedied for 5 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party and (iii)   Sections 7.01(a)(i), 7.01(a)(iii), 7.01(a)(iv), 7.01(a)(v), 7.01(a)(vi), 7.01(a)(vii), 7.01(a)(x), 7.01(a)(xiii), 7.01(a)(xiv), 7.01(h) and 7.01(l), and such failure, if capable of being remedied, shall remain unremedied for 3 Business Days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party, provided that Borrower may not exercise its rights of remedy under this clause (iii)   more than one time in any calendar year;

(d) any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be performed or observed by it and, except as set forth in subsections (a), (b) and (c)  of this Section  9.01, such failure, if capable of being remedied, shall remain unremedied for 30 days after the earlier of the date a Senior Officer of any Loan Party becomes aware of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party;

(e) any Loan Party or any of its Subsidiaries shall fail to pay any of its Indebtedness in excess of $2,500,000 (it being understood that, to the extent constituting Indebtedness, obligations in relation to the Funko Earnout that are paid within the time frame provided for in the Funko LLC Agreement through the issuance of Funko Earnout Preferred Equity shall not constitute a failure to pay such Indebtedness), or any payment of principal, interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;

 

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(f) any Loan Party or any of its Subsidiaries (i)  shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii)  shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii)  shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f);

(g) any proceeding shall be instituted against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, suspension of payments, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian, administrator or other similar official for any such Person or for any substantial part of its property, and, in the case of the Loan Parties, either such proceeding shall remain undismissed or unstayed for a period of sixty (60)  days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against any such Person or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur;

(h) [ Intentionally Omitted].

(i) any provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document;

(j) any Security Document, any Mortgage or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any Collateral purported to be covered thereby;

 

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(k) one or more judgments, orders or awards (or any settlement of any claim that, if breached, could result in a judgment, order or award) for the payment of money exceeding $2,500,000 in the aggregate shall be rendered against any Loan Party and remain unsatisfied and either (i)  enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement, (ii)  there shall be a period of 30 consecutive days after entry thereof during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, shall not be in effect, (iii)  at any time during which a stay of enforcement of any such judgment, order, award or settlement, by reason of a pending appeal or otherwise, is in effect, such judgment, order, award or settlement is not bonded to the extent required to keep such stay in effect or (iv)  any Lien arising from any such judgment, order, award or settlement over the assets of any Loan Party becomes enforceable and any step (including the taking of possession or the appointment of a receiver, managers or similar person) is taken to enforce that Lien; provided , however , that any such judgment, order, award or settlement shall not give rise to an Event of Default under this subsection   (k) if and for so long as (A)   the amount of such judgment, order, award or settlement is covered by a valid and binding policy of insurance between the defendant and the insurer covering full payment thereof and (B)  such insurer has been notified, and has not disputed the claim made for payment, of the amount of such judgment, order, award or settlement;

(l) any cessation of a substantial part of the business of any Loan Party for a period which could reasonably be expected to have a Material Adverse Effect on the ability of the Loan Parties to continue its business on a profitable basis;

(m) the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Loan Party, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect;

(n) the indictment of any Loan Party under any criminal statute, or commencement of criminal or civil proceedings against any Loan Party or any of its Subsidiaries, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture to any Governmental Authority of any material portion of the property of such Person;

 

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(o) any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been given to any Loan Party by any Agent, (i) such Termination Event (if correctable) shall not have been corrected, and (ii)  the Termination Event is reasonably anticipated to result in liability in excess of $2,500,000; or

(p) a Change of Control shall have occurred;

then, and in any such event, the any Agent may, and shall at the request of the Required Lenders, by notice to the Administrative Borrower, (i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the Loans and Reimbursement Obligations then outstanding to be due and payable, whereupon all or such portion of the aggregate principal of all Loans and Reimbursement Obligations, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and the other Loan Documents shall become due and payable immediately, together with the payment of the Applicable Prepayment Premium (if any) with respect to the Commitments so terminated and the Loans so repaid, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under applicable law, hereunder and under the other Loan Documents; provided , however , that upon the occurrence of any Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all Loans and Reimbursement Obligations then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement and the other Loan Documents shall become due and payable automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by each Loan Party. Subject to Section 4.03(b), the Administrative Agent may, after the occurrence and during the continuation of any Event of Default, require the Borrowers to Cash Collateralize each Letter of Credit then outstanding.

Notwithstanding anything to the contrary contained in Section 9.01, if the Loan Parties fail to comply with any financial covenant set forth in Section 7.03 as of any date or for any period, until the expiration of the tenth (10 th ) Business Day following the date on which financial statements are required to be delivered with respect to the applicable Fiscal Quarter hereunder, the Ultimate Parent may sell or issue common Qualified Equity Interest of the Ultimate Parent (the “ Permitted Cure Stock ”) the proceeds of which shall be deemed to increase Consolidated EBITDA (solely for purposes of Section 7.03(a) and (b) and not for any other purpose) on a dollar-for-dollar basis for the Fiscal Quarter most recently ended, with the effect that such financial covenants shall be recalculated on a pro forma basis, and, if after giving effect to such recalculation, the Borrowers are in compliance with such financial covenants, the Borrowers shall be deemed to have satisfied such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith;

 

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provided , however , that (i) such proceeds do not exceed the aggregate amount necessary to cure such Event of Default under Section 7.03(a) and (b) for the applicable period, (ii) the cure right under this paragraph shall be available up to four non-consecutive times during the term of this Agreement, (iii) the amount of proceeds arising from the issuance of the Permitted Cure Stock shall not represent more than 20% of Ultimate Parent’s TTM Consolidated EBITDA for the most recently ended Fiscal Quarter, (iv) Indebtedness shall not be deemed reduced by any payment made pursuant to Section 2.05(c)(ix) at any time that such related Consolidated EBITDA increase pursuant to this paragraph exists and (v) during the 10 Business Day period referred to above, neither the Administrative Agent nor any Lender may exercise any rights or remedies under Section 9.01 (or under any other Loan Document) on the basis of any actual or purported Event of Default under Section 9.01(c).

ARTICLE X.

AGENTS

Section 10.01 Appointment . Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to perform the duties of each such Agent as set forth in this Agreement including: (i) to receive on behalf of each Lender any payment of principal of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Lenders and paid to such Agent, and, subject to Section 2.02 of this Agreement, to distribute promptly to each Lender its Pro Rata Share of all payments so received; (ii) to distribute to each Lender copies of all material notices and agreements received by such Agent and not required to be delivered to each Lender pursuant to the terms of this Agreement, provided that the Agents shall not have any liability to the Lenders for any Agent’s inadvertent failure to distribute any such notices or agreements to the Lenders; (iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, and related matters and to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (iv) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Loan Document; (v) to make the Loans and Agent Advances, for such Agent or on behalf of the applicable Lenders as provided in this Agreement or any other Loan Document; (vi) to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by such Agent of the rights and remedies specifically authorized to be exercised by such Agent by the terms of this Agreement or any other Loan Document; (vii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document; and (viii) subject to Section 10.03 of this Agreement, to take such action as such Agent deems appropriate on its behalf to administer the Loans and the Loan Documents and to exercise such other powers delegated to such Agent by the terms hereof or the other Loan Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and instructions and the power to make or to refuse to make determinations and calculations) together with such powers as are reasonably incidental

 

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thereto to carry out the purposes hereof and thereof. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including, without limitation, enforcement or collection of the Loans), the Agents shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions of the Required Lenders shall be binding upon all Lenders and all makers of Loans; provided , however , that the L/C Issuer shall not be required to refuse to honor a drawing under any Letter of Credit and the Agents shall not be required to take any action which, in the reasonable opinion of any Agent, exposes such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law.

(b) Nature of Duties; Delegation . (a) The Agents shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents. The duties of the Agents shall be mechanical and administrative in nature. The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan Parties and the value of the Collateral, and the Agents shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before the initial Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this Agreement or any other Loan Document. If any Agent seeks the consent or approval of the Required Lenders to the taking or refraining from taking any action hereunder, such Agent shall send notice thereof to each Lender. Each Agent shall promptly notify each Lender any time that the Required Lenders have instructed such Agent to act or refrain from acting pursuant hereto.

(b) Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article X to the extent provided by the applicable Agent.

(c) An Agent may employ agents and attorneys in fact and shall not be liable for the default or misconduct of any such agents or attorneys in fact selected by such Agent with reasonable care.

Section 10.02 Rights, Exculpation, Etc . The Agents and their directors, officers, agents or employees shall not be liable for any action taken or omitted to be

 

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taken by them under or in connection with this Agreement or the other Loan Documents, except for their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Loan as the owner thereof until the Agents receive written notice of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form reasonably satisfactory to the Agents; (ii) may consult with legal counsel (including, without limitation, counsel to any Agent or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts; (iii) make no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall not be deemed to have made any representation or warranty regarding the existence, value or collectibility of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. The Agents shall not be liable for any apportionment or distribution of payments made in good faith pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount which they are determined to be entitled. The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to grant, and if such instructions are promptly requested, the Agents shall be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such instructions from the Required Lenders (unless unanimity is required). Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (unless unanimity is required).

Section 10.04 Reliance . Each Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.

Section 10.05 Indemnification . To the extent that any Agent or the L/C Issuer is not reimbursed and indemnified by any Loan Party, and whether or not such Agent or

 

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the L/C Issuer has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent or the L/C Issuer, reimburse and indemnify such Agent and the L/C Issuer from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, client charges and expenses of counsel or any other advisor to such Agent or the L/C Issuer), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Agent or the L/C Issuer in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by such Agent or the L/C Issuer under this Agreement or any of the other Loan Documents, in proportion to each Lender’s Pro Rata Share, including, without limitation, advances and disbursements made pursuant to Section 10.08; provided , however , that (a) no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination that such liability resulted from such Agent’s or the L/C Issuer’s gross negligence or willful misconduct, and (b) only the Revolving Loan Lenders shall be obligated to indemnify the L/C Issuer for any amounts owing to the L/C Issuer pursuant to this Section 10.05. The obligations of the Lenders under this Section 10.05 shall survive the Payment in Full of the Loans and the termination of this Agreement.

Section 10.06         Agents Individually . With respect to its Pro Rata Share of the Total Commitment hereunder and the Loans made by it, each Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or maker of a Loan. The terms “Lenders” or “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender or one of the Required Lenders. Each Agent and their Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the other Lenders.

Section 10.07         Successor Agent . (a) Any Agent may at any time give at least thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days prior written notice of its resignation to the Lenders, the L/C Issuer and the Administrative Borrower, provided that, if the continuing Agent assumes all of the resigning Agent’s duties hereunder, such resigning Agent may provide notice on the effective date of its resignation. Upon receipt of any such notice of resignation, (i) the Required Lenders shall have the right, with the consent of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Collateral Agent, and (ii) the Collateral Agent shall have the right, with the consent of the Required Revolving Loan Lenders and of the Administrative Borrower (which consent shall not be unreasonably withheld or delayed nor shall it be required during the existence of an Event of Default), to appoint a successor Administrative Agent. If no such successor Agent shall have been so appointed by the Required Lenders or Collateral Agent, as applicable, and shall have accepted such appointment within thirty (30) (or, if the Total Revolving Credit Commitment is reduced to zero, ten (10)) days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders and the L/C Issuer, appoint a successor Agent. Whether or not a successor Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

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(b) With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by such Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (ii)  all payments, communications and determinations provided to be made by, to or through such retiring Agent shall instead be made by or to the surviving Agent directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s Agent’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article, Section  12.04 and Section  12.16 shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the retiring Agent was acting as Agent.

Section 10.08 Collateral Matters .

(a) Each Agent may from time to time make such disbursements and advances (“ Agent Advances ”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section  10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the

 

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respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate.

(b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section  12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b).

(c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section  10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided , however , that (i)  the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii)  such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.

 

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(d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii)  in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii)  the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A)  at any public or private sale, (B)  at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D)  any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section  363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.

(e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any

 

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manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Section 10.09 Agency for Perfection . Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Agents and the Lenders as secured party. Should the Administrative Agent or any Lender obtain possession or control of any such Collateral, the Administrative Agent or such Lender shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s instructions. In addition, the Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.

Section 10.10 No Reliance on any Agent’s Customer Identification Program Certifications From Banks and Participants; USA PATRIOT Act .

(a) Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other requirements imposed by the USA PATRIOT Act or the regulations issued thereunder, including the regulations set forth in 31 CFR § 103.121, as hereafter amended or replaced (“ CIP Regulations ”), or any other Anti-Terrorism Laws or the equivalent on any applicable jurisdiction, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act. Each Lender, Affiliate, participant or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations or any equivalent provisions in any applicable jurisdiction.

(b) Each Lender or assignee or participant of a Lender that is not incorporated under the Laws of the United States of America or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to

 

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supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to each Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1) within ten (10) days after the Effective Date, and (2) as such other times as are required under the USA PATRIOT Act.

(c) The USA PATRIOT Act requires all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, any Agent or Lender may from time to time request, and each Loan Party shall provide to such Agent or Lender, such Borrower’s name, address, tax identification number and/or such other identifying information as shall be necessary for Lender to comply with the USA PATRIOT Act and any other Anti-Terrorism Law.

Section 10.11 No Third Party Beneficiaries . The provisions of this Article are solely for the benefit of the Agents, the Lenders and the L/C Issuer, and, except as provided in Sections 10.07 and 10.08, no Loan Party shall have rights as a third-party beneficiary of any of such provisions.

Section 10.12 No Fiduciary Relationship . It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

Section 10.13 Reports; Confidentiality; Disclaimers . By becoming a party to this Agreement, each Lender:

(a) is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report with respect to the Ultimate Parent or any of its Subsidiaries (each, a “ Report ”) prepared by or at the request of such Agent, and each Agent shall so furnish each Lender with each such Report,

(b) expressly agrees and acknowledges that the Agents (i) do not make any representation or warranty as to the accuracy of any Reports, and (ii)  shall not be liable for any information contained in any Reports,

(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other party performing any audit or examination will inspect only specific information regarding the Ultimate Parent and its Subsidiaries and will rely significantly upon the Ultimate Parent’s and its Subsidiaries’ books and records, as well as on representations of their personnel,

 

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(d) agrees to keep all Reports and other material, non-public information regarding the Ultimate Parent and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 12.21, and

(e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of the Borrowers, and (ii)  to pay and protect, and indemnify, defend and hold any Agent and any other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys fees and costs) incurred by any such Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

(f) If another division or department of an Agent receives information, it may be treated as confidential to that division or department and the relevant Agent will not be deemed to have notice of it.

Section 10.14 Conduct of business by the Lenders and Agents . No provision of this Agreement will: (a) interfere with the right of any Lender or Agent to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; (b) oblige any Lender or Agent to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or (c) oblige any Lender or Agent to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Taxes.

ARTICLE XI.

GUARANTY

Section 11.01 Guaranty .

(a) Each Loan Party hereby jointly and severally and unconditionally and irrevocably guarantees the punctual payment when due and payable (whether at stated maturity, on demand, by acceleration or otherwise), of all Obligations of the Borrowers, now or hereafter existing

 

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under any Loan Document, whether for principal, interest (including, without limitation, all interest that accrues after the commencement of any Insolvency Proceeding with respect to any Borrower, whether or not a claim for post-filing interest is allowed in such Insolvency Proceeding), Letter of Credit Obligations, fees, commissions, expense reimbursements, indemnifications or otherwise, and whether accruing before or subsequent to the commencement of any Insolvency Proceeding with respect to any Borrower (notwithstanding the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code), and the due performance and observance by the Borrowers of their other Obligations now or hereafter existing in respect of the Loan Documents (such Obligations, to the extent not paid or performed by the Borrowers, being the ” Guaranteed Obligations ”, and agrees to pay any and all expenses (including reasonable counsel fees and expenses) incurred by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer in enforcing any rights under the guaranty set forth in this ARTICLE XI.

(b) Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the applicable Guaranteed Obligations and would be owed by the Borrowers to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer under any Loan Document but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving the Borrowers. Notwithstanding any of the foregoing, Guaranteed Obligations shall not include any Excluded Hedge Liabilities. In no event shall the obligation of any Guarantor hereunder exceed the maximum amount such Guarantor could guarantee under any Debtor Relief Law.

Section 11.02 Guaranty Absolute . Each Loan Party jointly and severally guarantees that the Guaranteed Obligations, will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agents, the Lenders, the Bank Product Providers or the L/C Issuer with respect thereto. Each Guarantor party hereto agrees that this ARTICLE XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by any Agent or any Lender to any Collateral. The obligations of each Guarantor under this ARTICLE XI are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor party hereto to enforce such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in any such action or actions. The liability of each Guarantor party hereto under this ARTICLE XI shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor party hereto hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

 

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(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the applicable Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the applicable Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise and/or the making available of additional or new type of extensions of credit to any Loan Party that are of a different kind or nature from the types of extensions of credit available to the Loan Parties (or any of them) under the Loan Documents on the Effective Date;

(c) any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the applicable Guaranteed Obligations;

(d) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including, without limitation, any Agent, any Lender, any Bank Product Provider or the L/C Issuer;

(e) any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Loan Party; or

(f) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Agents, the Lenders, the Bank Product Providers or the L/C Issuer that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.

This ARTICLE XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Agents, the Lenders, the Bank Product Providers, the L/C Issuer or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made.

Section 11.03 Waiver . Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this ARTICLE XI and any requirement that the Agents, the Lenders, the Bank Product Providers or the L/C Issuer exhaust any right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any Agent, any Lender,

 

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any Bank Product Provider or the L/C Issuer to seek payment or recovery of any amounts owed under this ARTICLE XI from any one particular fund or source or to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement that any Agent, any Lender, any Bank Product Provider, any Bank Product Provider or the L/C Issuer protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to any Guarantor. Each Guarantor agrees that the Agents, the Lenders, the Bank Product Providers and the L/C Issuer shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Guaranteed Obligations. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly made in contemplation of such benefits. Each Guarantor hereby waives any right to revoke this ARTICLE XI, and acknowledges that this ARTICLE XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

Section 11.04 Continuing Guaranty; Assignments . This ARTICLE XI is a continuing guaranty and shall (a) in the case of each Loan Party, remain in full force and effect until the later of the Payment in Full of the Guaranteed Obligations (other than indemnification obligations as to which no claim has been made) and all other amounts payable under this ARTICLE XI and the Final Maturity Date and (b) inure to the benefit of and be enforceable by the Agents, the Lenders, the Bank Product Providers and the L/C Issuer and their successors, pledgees, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, its Loans, the Reimbursement Obligations and the Letter of Credit Obligations owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07.

Section 11.05 Subrogation . No Guarantor party hereto will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this ARTICLE XI, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agents, the Lenders, the Bank Product Providers and the L/C Issuer against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall have been Paid in Full and the Final Maturity Date shall have occurred. If any amount shall be paid to any Guarantor party hereto in violation of the immediately preceding sentence at any time prior to the later of (x) the Payment in Full of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI and (y) the Final Maturity Date, such amount shall be held in trust for the benefit of the Agents, the Lenders,

 

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the Bank Product Providers and the L/C Issuer and shall forthwith be paid to the Agents, the Lenders, the Bank Product Providers and the L/C Issuer to be credited and applied to the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Guaranteed Obligations, or other amounts payable under this ARTICLE XI thereafter arising. If (i) any Guarantor party hereto shall make payment to the Agents. the Lenders, the Bank Product Providers and the L/C Issuer of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations, and all other amounts payable under this ARTICLE XI shall be Paid in Full and (iii) the Final Maturity Date shall have occurred, the Agents, the Lenders, the Bank Product Providers and the L/C Issuer will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor party hereto of an interest in the Guaranteed Obligations, resulting from such payment by such Guarantor party hereto.

ARTICLE XII.

MISCELLANEOUS

Section 12.01 Notices, Etc .

(a) Notices Generally . All notices and other communications provided for hereunder shall be in writing and shall be mailed (certified mail, postage prepaid and return receipt requested), telecopied or delivered by hand, Federal Express or other reputable overnight courier, if to any Loan Party, at the following address:

if to a Borrower, to it at the following address:

Funko, LLC

Funko Holdings LLC

1202 Shuksan Way 2802 Wetmore Avenue

Everett, WA 98203 Washington 98201

with a copy to:

c/o ACON Equity Management, LLC

1133 Connecticut Avenue, NW, Suite 700

Washington, DC 20036

Attention: Mr. Ken Brotman

Telecopy: 202.454.1101

Telephone: 202.454.1111

 

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with a copy to:

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Gordon C. Wilson, Esq.

Telecopy: 202-637-5910

Telephone: 202-637-5711

if to the Administrative Agent, to it at the following address:

PNC Bank, National Association

1600 Market Street

Philadelphia, PA 19103

Attention: Brandon Schmoyer

Telephone: 215.585.6960

Telecopier: 215.585.4771

with a copy to:    

PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, PA 15219

Attention:    Lisa Pierce

Telephone:  (412) 762-6442

Facsimile:    (412) 762-8672

with a copy to:

Hahn & Hessen LLP

488 Madison Avenue

New York, NY 10022

Attention: Steven J. Seif, Esq.

Telephone: 212-478-7200

Telecopier: 212-478-7400

 

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if to the Collateral Agent, to it at the following address:

Cerberus Business Finance, LLC

875 Third Avenue

New York, New York 10022

Attention: Gerald M. Daniello

Telephone: 212-284-7810

Telecopier: 212-284-7906

in each case, with a copy to:

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

Attention: Eliot L. Relles, Esq.

Telephone: 212-756-2000

Telecopier: 212-593-5955

or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this Section 12.01. All such notices and other communications shall be effective, (i) if mailed (certified mail, postage prepaid and return receipt requested), when received or 3 days after deposited in the mails, whichever occurs first, (ii) if telecopied, when transmitted and confirmation received, or (iii) if delivered by hand, Federal Express or other reputable overnight courier, upon delivery, except that notices to any Agent or the L/C Issuer pursuant to ARTICLE II and ARTICLE III shall not be effective until received by such Agent or the L/C Issuer, as the case may be.

(b) Electronic Communications .

(i) Each Agent, Administrative Borrower and Administrative Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) in accordance with clause (b)(ii) below or otherwise pursuant to procedures approved by the Agents, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to ARTICLE II and ARTICLE III if such Lender or the L/C Issuer, as applicable, has notified the Agents that it is incapable of receiving notices under such Article by electronic communication.

(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address

 

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shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

Section 12.02 Amendments, Etc . (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (x) in the case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Agents and the Lenders or extending an existing Lien over additional property, by the Agents and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), (y) in the case of any other waiver or consent but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and (z) in the case of any other amendment but subject to the Agreement Among Lenders, by the Required Lenders (or by the Collateral Agent with the consent of the Required Lenders) and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall:

(i) increase any Commitment of any Lender, reduce the principal of, or interest on, the Loans or the Reimbursement Obligations payable to any Lender, reduce the amount of any fee payable for the account of any Lender, or postpone or extend any scheduled date fixed for any payment of principal of, or interest or fees on, the Loans or Letter of Credit Obligations payable to any Lender, in each case, without the written consent of such Lender;

(ii) [reserved];

(iii) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that is required for the Lenders or any of them to take any action hereunder without the written consent of each Lender;

 

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(iv) amend the definition of “Required Lenders” or “Pro Rata Share” without the written consent of each Lender;

(v) release all or a substantial portion of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents), subordinate any Lien granted in favor of the Collateral Agent for the benefit of the Agents and the Lenders, or release any Borrower or any Guarantor, in each case, without the written consent of each Lender (except as otherwise provided in this Agreement and the other Loan Documents);

(vi) amend, modify or waive Section 2.01(b)(i), Section  2.01(c), Section  2.05(c), Section  4.02, Section  4.03, Section  5.02 (it being understood, however, that this clause (vi)  shall not impact the effectiveness of any waiver of a Default or Event of Default, including for purposes of Section  5.02), Section  10.08, Section  12.07(b) or this Section  12.02 of this Agreement without the written consent of each Lender;

(vii) amend the definition of “Bank Product Provider”, “Bank Product Obligations” (or any defined term used therein or any provision expressly relating to Bank Product Obligations), “Bank Product Reserve”, “Cash Collateralize” (or any provision hereof relating to the Cash Collateralization of Letter of Credit Obligations), “Excluded Hedge Liability” (or any defined term used therein or any provision expressly relating to Excluded Hedge Liabilities), “Letter of Credit Sublimit”, “Interest Rate Hedging Obligations” (or any provision expressly relating to Interest Rate Hedging Obligations), “Lender-Provided Hedge Agreement”, or “Permitted Discretion” (as used with respect to the Administrative Agent), in each case, without the written consent of the Required Revolving Loan Lenders, the Required Lenders; or

(viii) amend the definition of “Availability”, “Book Value”, “Borrowing Base” (or any defined term used therein), “Eligible Accounts Receivable”, “Eligible Domestic Accounts Receivable”, Eligible Foreign Accounts Receivable”, “Eligible Domestic In-Transit Inventory” (or any defined term used therein), “Eligible Foreign In-Transit Inventory” (or any defined term used therein), “Eligible Inventory”, “Eligible Special Inventory”, “Dilution”, “Dilution Reserves”, “Net Amount of Eligible Accounts Receivable”, “Permitted Special Inventory Amount” or “Reserves” (or any defined term for any particular reserve referenced therein)), in each case, without the written consent of the Required Revolving Loan Lenders and the Required Lenders.

 

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Notwithstanding the foregoing, (A) no amendment, waiver or consent shall, unless in writing and signed by an Agent or the L/C Issuer, affect the rights or duties of such Agent or the L/C Issuer (but not in its capacity as a Lender) under this Agreement or the other Loan Documents, (B) any amendment, waiver or consent to any provision of this Agreement (including Sections 4.01 and 4.02) that permits any Loan Party, any Permitted Holder or any of their respective Affiliates to purchase Loans on a non-pro rata basis, become an eligible assignee pursuant to Section 12.07 and/or make offers to make optional prepayments on a non-pro rata basis shall require the prior written consent of the Required Lenders rather than the prior written consent of each Lender directly affected thereby and (C) the consent of the Borrowers shall not be required to change any order of priority set forth in Section 4.03. Notwithstanding anything to the contrary herein, no Defaulting Lender, Loan Party, Permitted Holder or any of their respective Affiliates that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents and any Loans held by such Person for purposes hereof shall be automatically deemed to be voted pro rata according to the Loans of all other Lenders in the aggregate (other than such Defaulting Lender, Loan Party, Permitted Holder or Affiliate).

(b) If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or any Lender affected thereby, such consent, authorization or agreement is provided by the Required Lenders and a Lender (the “ Holdout Lender ”) fails to give its consent, authorization, agreement, then the Collateral Agent may, or at the request of the Administrative Borrower, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders (each, a “ Replacement Lender ”), and the Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 12.07(b). Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender shall remain obligated to make its Pro Rata Share of Loans.

 

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Section 12.03 No Waiver; Remedies, Etc . No failure on the part of any Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agents and the Lenders under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any other Loan Document against such party or against any other Person.

Section 12.04 Expenses; Taxes; Attorneys’ Fees . The Borrowers will pay, not later than 15 days after receipt of a reasonably detailed invoice therefor, all reasonable and documented out-of-pocket costs and expenses incurred by or on behalf of each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender), regardless of whether the transactions contemplated hereby are consummated, including, without limitation, reasonable and documented out-of-pocket fees, costs, client charges and expenses of counsel for each Agent (and, in the case of clauses (d), (e), (f), (j), (k) and (l) below, each Lender, provided that the obligation to reimburse expenses of counsel shall be limited to one law firm for each Agent and, in the event of a conflict of interest, one additional law firm, together with one additional counsel in each applicable jurisdiction), accounting, due diligence, periodic field audits, physical counts, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, the rating of the Loans, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to: (a) the negotiation, preparation, execution, delivery, performance and administration of this Agreement and the other Loan Documents (including, without limitation, the preparation of any additional Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)), (b) any requested amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’ rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims against any Loan Party, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in, any court proceeding arising from or related to this Agreement or any other Loan Document, (f) the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral or other security, in connection with this Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking possession of or liquidation of, any Collateral or other security in connection with this Agreement or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any Collateral or other security in connection with this Agreement or any other Loan Document, (i) any attempt to collect from any Loan Party, (j) all liabilities and costs arising from or in connection with the past, present or future operations of

 

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any Loan Party involving any damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property, (k) any Environmental Liabilities and Costs incurred in connection with the investigation, removal, cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of any facility of any Loan Party, (l) any Environmental Liabilities and Costs incurred in connection with any Environmental Lien, (m) [intentionally deleted], or (n) the receipt by any Agent or any Lender of any advice from any accountants, auditors, appraisers, advisors or consultants with respect to any of the foregoing; provided , however , the foregoing to the contrary notwithstanding, that no Loan Party shall have any obligation to any Agent or any Lender under this Section  12.04 with respect to any Environmental Liabilities and Costs to the extent excluded from the obligations pursuant to Section  12.16(b) or with respect to any other obligations to the extent that such obligations (i) are caused by the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) arise from any dispute between or among any agent or any Lender, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among the Agents and Lenders and not involving the Loan Parties.   Without limitation of the foregoing or any other provision of any Loan Document: (x) the Borrowers agree to pay all stamp, document, transfer, recording or filing taxes or fees and similar impositions now or hereafter determined by any Agent or any Lender to be payable in connection with this Agreement or any other Loan Document, and the Borrowers agree to save each Agent and each Lender harmless from and against any and all present or future claims, liabilities or losses with respect to or resulting from any omission to pay or delay in paying any such taxes, fees or impositions, (y) the Borrowers agree to pay all broker fees that may become due in connection with the transactions contemplated by this Agreement and the other Loan Documents, and (z) if the Borrowers fail to perform any covenant or agreement contained herein or in any other Loan Document, any Agent may itself perform or cause performance of such covenant or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed not later than 15 days after receipt of a reasonably detailed invoice therefor. The obligations of the Borrowers under this Section 12.04 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

Section 12.05 Right of Set-off . Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any and all other Indebtedness at any time owing by such Agent or such Lender to or for the credit or the account of any Loan Party against any and all Obligations of the Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made any demand hereunder or thereunder and although such Obligations may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 4.03 and, pending such payment, shall be segregated by such Defaulting

 

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Lender from its other funds and deemed held in trust for the benefit of the Agents and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Agent and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies (including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents of law or otherwise.

Section 12.06 Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 12.07 Assignments and Participations .

(a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided , however , that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.

(b) Each Lender may (x) with the written consent of the Collateral Agent assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan B A-1 Commitment and any Term Loan made by it and (y)  with the written consent of each Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it; provided , however , that (i)  such assignment shall require the prior consent of the Administrative Borrower (which consent shall not (1)  be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default or (2)  required in connection with an assignment to Fortress Credit Corp. or any of its Affiliates or Related Funds), (ii) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (x)  a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y)  a group of new Lenders, each of

 

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whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof), (iii) except as provided in the last sentence of this Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Borrower (and the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and (iv) no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender, a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent, the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Collateral Agent, the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and 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). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (a “ Related Party Assignment ”); provided , however , that (I) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (II) the

 

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Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(d) below.

(c) By executing and delivering an Assignment and Acceptance, the assigning Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the 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 any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (ii)  the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii)  such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv)  such assignee will, independently and without reliance upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v)  such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi)  such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.

 

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(d) The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “ Register ”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “ Registered Loans ”) and Letter of Credit Obligations owing to each Lender from time to time. Subject to the last sentence of this Section 12.07(d), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section  12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (the “ Related Party Register ”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent, the Administrative Borrower or the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.

(f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written

 

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instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.

(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “ Participant Register ”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.

(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).

(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided , that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii)  such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations

 

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under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of 0, Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that, at the time such participant is claiming benefits pursuant to Section 2.09, such participant shall comply all obligations under Section 2.09 as if it was a Lender thereunder.

(j) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a  ” Securitization ”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.

Section 12.08 Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or electronic mail also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis .

Section 12.09 GOVERNING LAW . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

 

- 197 -


Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE . (a) EACH OF THE LOAN PARTIES HERETO AGREE THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.

(b) EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.01. SERVICE MAY BE MADE ON THE LOAN PARTIES, IN ANY SUCH ACTION OR PROCEEDING, BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWERS AT THEIR RESPECTIVE ADDRESSES FOR NOTICES AS SET FORTH IN SECTION 12.01, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.

(c) EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

 

- 198 -


Section 12.11 WAIVER OF JURY TRIAL, ETC . EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.

Section 12.12 [ Reserved ].

Section 12.13 No Party Deemed Drafter . Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter of this Agreement.

Section 12.14 Reinstatement; Certain Payments . If any claim is ever made upon any Agent, any Lender or the L/C Issuer for repayment or recovery of any amount or amounts received by such Agent, such Lender or the L/C Issuer in payment or on account of any of the Obligations, such Agent, such Lender or the L/C Issuer shall give prompt notice of such claim to each other Agent and Lender and the Administrative Borrower, and if such Agent, such Lender or the L/C Issuer repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such Agent, such Lender or the L/C Issuer or any of its property, or (ii) any good faith settlement or compromise of any such claim effected by such Agent, such Lender or the L/C Issuer with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree, order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable to such Agent, such Lender or the L/C Issuer hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Agent, such Lender or the L/C Issuer.

Section 12.15 [ Intentionally Omitted ].

Section 12.16 Indemnification; Limitation of Liability for Certain Damages .

(a) General Indemnity for Obligations . In addition to each Loan Party’s other Obligations under this Agreement, each Loan Party

 

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agrees to, jointly and severally, defend, protect, indemnify and hold harmless each Agent and each Lender and each of their Affiliates and all of their respective officers, directors, employees, attorneys, consultants and agents (collectively called the “ Indemnitees ”) from and against any and all losses, damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses, provided that the obligation to reimburse expenses of counsel shall be limited as provided in Section 12.04 incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following: (i) the negotiation, preparation, execution or performance or enforcement of this Agreement, any other Loan Document or of any other document executed in connection with the transactions contemplated by this Agreement, (ii) transactions contemplated by this Agreement, (iii) any Agent’s or any Lender’s furnishing of funds to the Borrowers for the account of the Borrowers under this Agreement or the other Loan Documents, including, without limitation, the management of any such Loans, (iv) any matter relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (collectively, the “ Indemnified Matters ”); provided , however , that the Loan Parties shall not have any obligation to any Indemnitee under this subsection (a) for any Indemnified Matter (i) caused by the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final judgment of a court of competent jurisdiction, (ii) to the extent arising from any dispute between or among any Indemnitees, on the one hand, and ACON and/or the Borrowers or any of their Affiliates, on the other hand, to the extent that ACON and/or the Borrowers or any of their Affiliates prevails in such dispute, as determined by a final judgment of a court of competent jurisdiction, and (iii) any dispute solely among Indemnities not involving the Loan Parties.

(b) Environmental Indemnity for Obligations . Each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including without limitation, reasonable legal fees and expenses, consultant fees and laboratory fees), arising out of (i)  any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party

 

- 200 -


or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or relating to any Release of Hazardous Materials by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which (x) is caused by the gross negligence, bad faith, or willful misconduct of such Indemnitee, (y) arose from Hazardous Materials brought on to any real property after any Indemnitee has taken title to or possession of such property, whether by foreclosure, deed-in-lieu thereof or otherwise, as determined by a final judgment of a court of competent jurisdiction, or (z) is attributable solely to acts of any of the Agents.

(c) The indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees, respectively are chargeable against the Loan Account. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.16 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. The indemnities set forth in this Section  12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents. To the extent permitted by applicable law, no Loan Party 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, any other Loan Document, any other agreement or instrument contemplated hereby or thereby, any Loan or the use of the proceeds thereof.

(d) The indemnities and waivers set forth in this Section 12.16 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents.

 

- 201 -


Section 12.17 Administrative Borrowers . Each Borrower hereby irrevocably appoints Funko as the agent and attorney-in-fact for the Borrowers (the “ Administrative Borrower ”), which appointment shall remain in full force and effect unless and until the Agents shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. It is understood that the handling of the Loan Account and Collateral of the Borrowers, in a combined fashion, as more fully set forth herein and subject to the limitations set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the Lenders shall incur liability to the Borrowers as a result hereof. Each of the Borrowers expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To induce the Agents and the Lenders to do so, and in consideration thereof, each of the Borrowers, hereby jointly and severally agrees to indemnify the Indemnitees and hold the Indemnitees harmless against any and all liability, expense, loss or claim of damage or injury, made against such Indemnitee by any of the Borrowers or by any third party whosoever, arising from or incurred by reason of (a) the handling of the Loan Account and Collateral of the Borrowers as herein provided, (b) the Agents and the Lenders relying on any instructions of the Administrative Borrower or the Administrative Borrowers, or (c) any other action taken by any Agent or any Lender hereunder or under the other Loan Documents.

Section 12.18 Records . The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, including, without limitation, the fees payable under the Fee Letter, the Loan Servicing Fee, Unused Line Fee, the Letter of Credit Fee and the Applicable Prepayment Premium, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding absent manifest error.

Section 12.19 Binding Effect . This Agreement shall become effective when it shall have been executed by each Loan Party, each Agent and each Lender and when the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived in writing by the Agents, and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall be governed by Section 12.07 hereof.

Section 12.20 Interest . It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or

 

- 202 -


any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such Lender, as applicable, to the Borrowers); and (ii) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be Paid in Full, refunded by such Agent or such Lender to the Borrowers). All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until Payment in Full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 12.20 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 12.20.

For purposes of this Section 12.20 the term “applicable law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrowers, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.

The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration.

 

- 203 -


Section 12.21 Confidentiality . Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) to keep confidential any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the other Loan Documents (and which at the time is not, and does not thereafter become, publicly available or available to such Person from another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, counsel, advisors and representatives (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 in accordance with this Section 12.21); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant) so long as such assignee or participant (or prospective assignee or participant) first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.21; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority; (v) to examiners, auditors or accountants; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (viii) to its lenders or financing providers; (ix) in connection with public filings, or (x) with the consent of the Administrative Borrower.

Section 12.22 Public Disclosure . Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue any press release or other public disclosure using the name of an Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate will consult with such Agent or such Lender before issuing such press release or other public disclosure). Each Agent and each Lender agrees that neither it nor any of its Affiliates will now or in the future advertise the closing of the transactions contemplated by this Agreement, or otherwise make appropriate announcements of the financial arrangements entered into among the parties hereto, including, without limitation, on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation without the prior written consent of the Administrative Borrower, except to the extent that such Agent or Lender is required to do so under applicable law (in which event, such Agent or Lender or such Affiliate will consult with the Administrative Borrower before taking such action).

Section 12.23 Integration . This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.

 

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Section 12.24 USA PATRIOT Act . Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the entities composing the Borrowers, which information includes the name and address of each such entity and other information that will allow such Lender to identify the entities composing the Borrowers in accordance with the USA PATRIOT Act. Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments and documents as any Lender may reasonably require from time to time in order to enable such Lender to comply with the USA PATRIOT Act.

Section 12.25 Keepwell . Each Loan Party, if it is a Qualified ECP Loan Party, then jointly and severally, together with each other Qualified ECP Loan Party, hereby absolutely unconditionally and irrevocably (a) guarantees the prompt payment and performance of all Swap Obligations owing by each Non-Qualifying Party (it being understood and agreed that this guarantee is a guaranty of payment and not of collection), and (b) undertakes to provide such funds or other support as may be needed from time to time by any Non-Qualifying Party to honor all of such Non-Qualifying Party’s obligations under this Agreement or any other Loan Document in respect of Swap Obligations (provided, however, that each Qualified ECP Loan Party shall only be liable under this Section 12.25 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.25, or otherwise under this Agreement or any other Loan Document, voidable under applicable law, including applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Loan Party under this Section 12.25 shall remain in full force and effect until payment in full of the Obligations and termination of this Agreement and the other Loan Documents. Each Qualified ECP Loan Party intends that this Section 12.25 constitute, and this Section 12.25 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of each other Borrower and Guarantor for all purposes of Section 1a(18(A)(v)(II) of the CEA .

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS :
FUNKO ACQUISITION HOLDINGS, L.L.C.
By:    
  Name:
  Title:
FUNKO HOLDINGS LLC
By:    
  Name:
  Title:
FUNKO, LLC
By:    
  Name:
  Title:


COLLATERAL AGENT :
CERBERUS BUSINESS FINANCE, LLC
By:    
  Name:
  Title:


ADMINISTRATIVE AGENT AND LENDER :
PNC BANK, NATIONAL ASSOCIATION
By:    
  Name:
  Title:


LENDERS :
CERBERUS NJ CREDIT OPPORTUNITIES FUND, L.P.
By:   Cerberus NJ Credit Opportunities GP, LLC,
  its General Partner
By:    
  Name:
  Title:
CERBERUS ASRS HOLDINGS LLC
By:    
  Name:
  Title:
CERBERUS ICQ LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus ICQ Levered Opportunities GP, LLC,
  its General Partner
By:    
  Name:
  Title:
CERBERUS KRS LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus KRS Levered Opportunities GP, LLC,
  its General Partner
By:    
  Name:
  Title:

 

- i -


CERBERUS PSERS LEVERED LOAN OPPORTUNITIES FUND, L.P.
By:   Cerberus PSERS Levered Opportunities GP, LLC, its General Partner
By:    
  Name:
  Title :

 

- ii -


SCHEDULE 1.01(A)

LENDERS AND LENDERS’ COMMITMENTS

 

Lender

   Revolving Loan
Commitment
     Term Loan A-1
Commitment
     Initial Term Loan
A and First
Amendment Term
Loan
Amount
Outstanding as of
the Amendment
No. 3 5 Effective
Date
     Term Loan B
Commitment
Amount
Outstanding as of
the Amendment
No. 5 Effective
Date
     Total  

PNC Bank, National Association

   $
 
80,000,000.00
100,000,000.00
 
 
             $ —        $ —        $

 

80,000,000.0 0

100,000,000.00

 

 

Cerberus ASRS Funding LLC

   $ —                  $

 

49,543,413.58

47,843,549.52

 

 

   $
 
  
5,133,452.76
 
 
   $

 

49,543,413.58

52,977,002.28

 

 

Cerberus AUS Levered Holdings LP

                       $ 590,800.87      $ 584,540.90      $ 1,175,341.77  

Cerberus AUS Levered II LP

   $ —                  $

 

7,642,142.55

7,566,564.78

 

 

   $ —        $

 

7,642,142.55

7,566,564.78

 

 

Cerberus FSBA Levered LLC

   $ —                  $

 

3,232,594.04

2,551,651.10

 

 

   $
 
  
3,090,176.33
 
 
   $

 

3,232,594.04

5,641,827.43

 

 

Cerberus ICQ Levered LLC

   $ —                  $

 

10,593,381.71

9,228,152.44

 

 

   $
 
  
2,387,979.67
 
 
   $

 

10,593,381.71

11,616,132.11

 

 

Cerberus ICQ Levered II LLC

                         —        $ 1,363,430.14      $ 1,363,430.14  

Cerberus ICQ Offshore Levered LP

                       $ 1,106,320.48                $ 1,106,320.48  

Cerberus ICQ Offshore Loan Opportunities Master Fund, L.P.

                                 $ 772,684.05      $ 772,684.05  

Cerberus KRS Levered LLC

   $ —                  $

 

5,780,306.45

5,576,640.04

 

 

   $
 
  
549,131.60
 
 
   $

 

5,780,306.45

6,125,771.64

 

 

Cerberus Loan Funding XV L.P.

   $ —                  $

 

12,208,525.04

12,087,787.56

 

 

   $ —        $

 

12,208,525.04

12,087,787.56

 

 

Cerberus Loan Funding XVI LP

   $ —                  $

 

10,397,176.04

10,294,352.08

 

 

   $ —        $

 

10,397,176.04

10,294,352.08

 

 

Cerberus Loan Funding XVII, Ltd.

   $ —                  $

 

7,362,905.68

7,290,089.46

 

 

   $
 
  
2,282,216.97
 
 
   $

 

7,362,905.68

9,572,306.43

 

 

Cerberus Loan Funding XVIII L.P.

                       $ 6,310,355.28      $ 6,410,720.55      $ 12,721,075.83  


Lender

   Revolving Loan
Commitment
     Term Loan A-1
Commitment
     Initial Term Loan
A and First
Amendment Term
Loan
Amount
Outstanding as of
the Amendment
No. 3 5 Effective
Date
     Term Loan B
Commitment
Amount
Outstanding as of
the Amendment
No. 5 Effective
Date
     Total  

Cerberus Loan Funding XIX L.P.

                $ 6,915,836.08                $ 6,915,836.08  

Cerberus N-1 Funding LLC

   $ —         
  
 
   $

 

18,469,780.73

11,013,669.98

 

 

   $

 

—  

1,334,838.78

 

 

   $

 

18,469,780.73

12,348,508.76

 

 

Cerberus Onshore Offshore Levered III LLC LP

   $ —                  $

 

7,994,359.75

2,859,287.68

 

 

   $

 

—  

2,859,720.83

 

 

   $

 

7,994,359.75

5,719,008.51

 

 

Cerberus PSERS Levered LLC

   $ —                  $

 

14,742,560.95

13,919,192.99

 

 

   $

 

—  

3,371,680.96

 

 

   $

 

14,742,560.95

17,290,873.95

 

 

Cerberus Redwood Levered Loan Opportunities Fund A, L.P.

                                 $ 1,342,211.82      $ 1,342,211.82  

Cerberus Redwood Levered Loan Opportunities Fund B, L.P.

                                 $ 2,013,317.73      $ 2,013,317.73  

Cerberus SWC Levered LP II LLC

   $ —        $         $

 

11,336,244.19

12,573,692.85

 

 

   $

 

—  

943,912.37

 

 

   $

 

11,336,244.19

13,517,605.22

 

 

Cerberus ASRS Holdings LLC

   $ —        $ 4,487,615.47      $ —        $
 
10,480,695.09
—  
 
 
   $

 

10,480,695.09

4,487,615.47

 

 

Cerberus FSBA Holdings LLC

   $ —        $ 939,295.49      $ —        $
 
4,367,399.99
—  
 
 
   $

 

4,367,399.99

939,295.49

 

 

Cerberus ICQ Levered Loan Opportunities Fund, L.P.

   $ —           $ —        $ 5,301,932.79      $ 5,301,932.79  

Cerberus KRS Levered Loan Opportunities Fund, L.P.

   $ —        $ 443,281.95      $ —        $
 
776,097.23
—  
 
 
   $

 

776,097.23

443,281.95

 

 

Cerberus Levered Loan Opportunities Fund III, L.P.

   $ —        $ 5,524,808.23      $ —        $
 
9,060,382.94
—  
 
 
   $

 

9,060,382.94

5,524,808.23

 

 


Lender

   Revolving Loan
Commitment
     Term Loan A-1
Commitment
     Initial Term Loan
A and First
Amendment Term
Loan
Amount
Outstanding as of
the Amendment
No. 3 5 Effective
Date
     Term Loan B
Commitment
Amount
Outstanding as of
the Amendment
No. 5 Effective
Date
     Total  

Cerberus NJ Credit Opportunities Fund, L.P.

   $ —        $ 1,542,540.50      $ —        $

 

1,886,550.89

  

 

 

   $

 

1,886,550.89

1,542,540.50

 

 

Cerberus PSERS Levered Loan Opportunities Fund, L.P.

   $ —        $ 1,717,784.09      $         $

 

4,765,255.40

  

 

 

   $

 

4,765,255.40

1,717,784.09

 

 

Fortress Credit Opportunities III CLO LP

   $ —                  $

 

15,440,476.87

16,687,776.66

 

 

   $

 

6,361,685.67

5,979,984.54

 

 

   $

 

21,802,162.54

22,667,761.20

 

 

Fortress Credit Opportunities V CLO Limited

   $ —                  $
 
18,446,570.02
20,064,140.75
 
 
   $

 

2,000,000.00

1,880,000.00

 

 

   $
 
20,446,570.02
21,944,140.75
 
 

Fortress Credit Opportunities VII CLO Limited

   $ —                  $
 
15,504,756.74
15,351,420.83
 
 
   $

 

5,000,000.00

4,700,000.00

 

 

   $
 
20,504,756.74
20,051,420.83
 
 

Fortress Credit Opportunities VI CLO Limited

   $ —                  $

 

4,856,353.60

5,418,718.57

 

 

   $ —        $

 

4,856,353.60

5,418,718.57

 

 

Fortress DBD Credit Fund V LP Funding LLC

   $
—  
 
   $
5,344,674.27
 
   $

 

3,848,452.06

  

 

 

   $
—  
 
   $

 

3,848,452.06

5,344,674.27

 

 

Total

   $

 

80,000,000.00

100,000,000.00

 

 

   $ 20,000,000.00      $
 
217,400,000.00
215,250,000.00
 
 
   $

 

50,000,000.00

47,000,000.00

 

 

   $
 
267,400,000.00
282,250,000.00
 
 


SCHEDULE 1.01(B)

SECURITY DOCUMENTS

 

1. Security Agreement

 

2. Trademark Security Agreement

 

- i -

Exhibit 10.11

EXECUTION VERSION

PLEDGE AND SECURITY AGREEMENT

PLEDGE AND SECURITY AGREEMENT, dated as of October 30, 2015, made by each of the Grantors on the signature pages hereto, in favor of Cerberus Business Finance, LLC, a Delaware limited liability company (“ CBF ”), in its capacity as collateral agent for the Secured Parties referred to below (in such capacity, together with its successors and assigns in such capacity, if any, the “ Collateral Agent ”).

W I T N E S S E T H :

WHEREAS, Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “Buyer”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations, each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the  “Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the  “Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the  “Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”) are parties to that certain Financing Agreement, dated as of October 30, 2015 (such agreement, as amended, restated, supplemented or otherwise modified from time to time, including any replacement agreement therefor, being hereinafter referred to as the “ Financing Agreement ”);

WHEREAS, pursuant to the Financing Agreement, the Lenders have agreed to make certain term loans and revolving loans, which revolving loans will include a subfacility for the issuance of letters of credit (each a “ Loan ” and collectively, the “ Loans ”), to the Borrowers;

WHEREAS, it is a condition precedent to the Lenders making any Loan and providing any other financial accommodation to the Borrowers pursuant to the Financing Agreement that each person listed as a “Grantor” on the signature pages hereto (each a “Grantor” and collectively the “Grantors”) shall have executed and delivered to the Collateral Agent a pledge to the Collateral Agent, for the benefit of the Secured Parties, and the grant to the Collateral Agent, for the benefit of the Secured Parties, of (a) a security interest in and Lien on the outstanding Equity Interests (as defined in the Financing Agreement) and indebtedness from time to time owned by such Grantor of each Person now or hereafter existing and in which such Grantor has any interest at any time, and (b) a security interest in all or substantially all other personal property and fixtures of such Grantor, in each case, subject to certain exceptions as provided herein;


WHEREAS, the Grantors are dependent on each other in the conduct of their respective businesses, with credit needed from time to time by each Grantor often being provided through financing obtained by the other Grantors and the ability to obtain such financing being dependent on the successful operations of all of the Grantors as a whole; and

WHEREAS, each Grantor has determined that the execution, delivery and performance of this Agreement directly benefit, and are in the business interest of such Grantor;

NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to induce the Collateral Agent, the Administrative Agent and the Lenders to make and maintain the Loans and to provide Letters of Credit and to provide other financial accommodations to the Borrowers pursuant to the Financing Agreement, the Grantors hereby jointly and severally agree with the Collateral Agent, for the benefit of the Secured Parties, as follows:

SECTION 1. Definitions .

 

  (a) Reference is hereby made to the Financing Agreement for a statement of the terms thereof. All capitalized terms used in this Agreement and the recitals hereto which are defined in the Financing Agreement or in Article 8 or 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “ Code ”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein; provided that terms used herein which are defined in the Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Collateral Agent may otherwise determine.

 

  (b) The following terms shall have the respective meanings provided for in the Code: “Accounts”, “Account Debtor”, “Cash Proceeds”, “Certificate of Title”, “Chattel Paper”, “Commercial Tort Claim”, “Commodity Account”, “Commodity Contracts”, “Deposit Account”, “Documents”, “Electronic Chattel Paper”, “Equipment”, “Fixtures”, “General Intangibles”, “Goods”, “Instruments”, “Inventory”, “Investment Property”, “Letter-of-Credit Rights”, “Noncash Proceeds”, “Payment Intangibles”, “Proceeds”, “Promissory Notes”, “Record”, “Security Account”, “Software”, “Supporting Obligations” and “Tangible Chattel Paper”.

 

  (c) As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of such terms:

Additional Collateral ” has the meaning specified therefor in Section 4(a)(i) hereof.

CFC ” means any subsidiary of Ultimate Parent (i) that is a “controlled foreign corporation” (as defined in the Internal Revenue Code), (ii) all or substantially all of the assets of which consist of stock of one or more subsidiaries described in clause (i) above, in each case that

 

2


has not guaranteed or pledged any of its assets or suffered a pledge of more than 65% of its voting stock to secure, directly or indirectly, any Indebtedness of the Loan Parties or (iii) any direct or indirect domestic subsidiary of a direct or indirect foreign subsidiary of Ultimate Parent (and any direct or indirect domestic subsidiary that is a disregarded entity for U.S. federal income tax purposes if substantially all of its assets consist of the equity or indebtedness of one or more direct or indirect foreign subsidiaries).

Copyright Licenses ” means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensee or licensor and providing for the grant of any right to use or sell any works covered by any Copyright (including, without limitation, all such licenses, contracts or other agreements set forth in Schedule II hereto).

Excluded Property ” shall mean:

(a) any Investment Property or General Intangibles or assets governed thereby (including any license, contract, permit, lease or franchise to the extent deemed a General Intangible), now or hereafter held or owned by any Grantor, to the extent, in each case, that (i) a security interest may not be granted by a Grantor in such Investment Property or General Intangibles as a matter of law or (ii) a security interest may not be granted under the express terms of the governing documents applicable to such General Intangible, Investment Property or assets governed thereby (or the granting of which would result in a default or termination under such governing documents), without the consent of one or more applicable parties thereto so long as such consent from such applicable party or parties is not from either Parent or another Loan Party under the Financing Agreement,

(b) fixtures located on premises leased by any Grantor to the extent the pledge thereof or grant of a security interest therein is (i) prohibited by the lease governing such premises and (ii) would result in the forfeiture of any Grantor’s right, title or interest thereunder under applicable law; provided , however , that at such time as any such grant of a security interest in any fixture is not prohibited and does not result in a forfeiture thereunder or under applicable law, such fixture shall (without any further act or delivery by any Person) constitute Collateral hereunder,

(c) equipment owned by any Grantor that is subject to a Permitted Lien or a Lien securing Permitted Indebtedness if the contract or other agreement applicable to such Permitted Indebtedness validly prohibits the creation of any other Lien on such equipment or if such creation would result in a default or termination under the relevant agreement,

(d) any intent-to-use trademark application or other Intellectual Property to the extent and for so long as creation by a Grantor of a security interest therein would result in the abandonment, cancellation, invalidation or unenforceability thereof provided however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to in this clause (d) (unless such Proceeds, substitutions or replacements would constitute Excluded Property referred to in this clause (d)or any other clause of this definition),

(e) (i) any assets of any Subsidiary that is a CFC and (ii) more than 65% of the voting stock of any Subsidiary of a Loan Party that is a CFC,

 

3


(f) any License or any property subject to a License to the extent a grant of a security interest therein would result in a breach or termination pursuant to the terms of, or a default under, any such License, and

(g) any interest in real property,

(h) any (A) payroll and other employee wage and benefit accounts (B) tax accounts, including, without limitation, sales tax accounts, (C) escrow accounts and (D) fiduciary or trust accounts, and, in the case of clauses (A) through (D), the funds or other property held in or maintained in any such account,

(i) any assets in which a pledge of, or grant of security interest in, such assets would be prohibited by applicable law, rule or regulation or which would require governmental (including regulatory) consent, approval, license or authorization with respect to such pledge or grant, unless such consent, approval, license or authorization has been received,

(j) any Titled Collateral,

(k) any (A) margin stock (within the meaning of Regulation T, U or X), (B) Equity Interests in captive insurance subsidiaries, special purpose entities to the extent reasonably acceptable to the Collateral Agent (such acceptance not to be unreasonably withheld, delayed or conditioned) and not-for-profit subsidiaries, and (C) Equity Interests in any other Person (other than wholly-owned Subsidiaries) to the extent not permitted by the terms of such Person’s organizational or joint venture documents (so long as such prohibition did not arise as part of the acquisition or formation thereof or in anticipation of the Loans),

(l) any assets the granting of a security interest therein would result in adverse tax consequences (including, without limitation, as a result of the operation of Section 956 of the IRS Code or any similar law or regulation in any applicable jurisdiction) to any Grantor as reasonably determined by Borrowers and with the consent of the Collateral Agent (not to be unreasonably withheld, delayed or conditioned),

(m) Letter-of-Credit Rights (except to the extent a security interest therein can be perfected by the filing of financing statements under the Code), and

(n) those assets as to which the Collateral Agent and the Borrowers reasonably agree that the cost of obtaining or perfecting such a security interest is excessive in relation to the benefit to the Lenders of the security to be afforded thereby.

Existing Issuer ” has the meaning specified therefor in the definition of the term “Pledged Shares”.

Intellectual Property ” means all US and non-US (i) published and unpublished works of authorship (including, without limitation, computer software), copyrights therein and thereto, copyrighted works and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof, including, without limitation, all copyright registrations and applications listed in Schedule II hereto (collectively, “ Copyrights ”); (ii) inventions and discoveries and all patents, registrations, and applications therefor, including,

 

4


without limitation, divisionals, continuations, continuations-in-part and renewal applications, and all renewals, extensions and reissues, including, without limitation, all patents and patent applications listed in Schedule II hereto (collectively, “ Patents ”); (iii) trademarks, service marks, brand names, certification marks, collective marks, d/b/a’s, Internet domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other indicia of origin, all applications and registrations for all of the foregoing, and all goodwill associated therewith and symbolized thereby, and all extensions, modifications and renewals of same, including, without limitation, all trademark registrations and applications listed in Schedule II hereto (collectively, “ Trademarks ”); (iv) confidential and proprietary information, trade secrets and know-how, including, without limitation, processes, schematics, databases, formulae, drawings, prototypes, models, designs and customer lists (collectively, “ Trade Secrets ”); and (v) all other intellectual property or proprietary rights and claims or causes of action arising out of or related to any infringement, misappropriation or other violation of any of the foregoing, including, without limitation, rights to recover for past, present and future violations thereof (collectively, “ Other Proprietary Rights ”).

Licenses ” means the Copyright Licenses, the Patent Licenses and the Trademark Licenses.

Patent Licenses ” means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensee or licensor and providing for the grant of any right to manufacture, use or sell any invention covered by any Patent (including, without limitation, all such licenses, contracts or other agreements set forth in Schedule II hereto).

Pledged Debt ” means the indebtedness described in Schedule VII hereto and all indebtedness from time to time owned or acquired by a Grantor, the promissory notes and other Instruments evidencing any or all of such indebtedness, and all interest, cash, Instruments, Investment Property, financial assets, securities, Equity Interests, stock options and commodity contracts, notes, debentures, bonds, promissory notes or other evidences of indebtedness and all other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such indebtedness.

Pledged Interests ” means, collectively, (a) the Pledged Debt, (b) the Pledged Shares and (c) all security entitlements in any and all of the foregoing.

Pledged Issuer ” has the meaning specified therefor in the definition of the term “Pledged Shares”.

Pledged Shares ” means (a) the Equity Interests described in Schedule VIII hereto, whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, issued by the Persons described in such Schedule VIII (the “ Existing Issuers ”), (b) the Equity Interests at any time and from time to time acquired by a Grantor of any and all Persons now or hereafter existing (such Persons, together with the Existing Issuers, being hereinafter referred to collectively as the “ Pledged Issuers ” and each individually as a “ Pledged Issuer ”), whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, and (c) the certificates representing such Equity Interests, all options and other rights, contractual or otherwise, in respect thereof and all dividends, distributions, cash,

 

5


Instruments, Investment Property, financial assets, securities, Equity Interests, stock options and commodity contracts, notes, debentures, bonds, promissory notes or other evidences of indebtedness and all other property (including, without limitation, any stock dividend and any distribution in connection with a stock split) from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Equity Interests. Without limiting the foregoing, “ Pledged Shares ” shall include in each case all of the following rights relating to any of the Equity Interests described in clauses (a) and (b) of the prior sentence, whether arising under the Organizational Documents of applicable Pledged Issuer or under the applicable laws of such Pledged Issuer’s jurisdiction of organization relating to the formation, existence and governance of corporations, limited liability companies or partnerships or business trusts or other legal entities, as the case may be: (i) all economic rights (including all rights to receive dividends and distributions) relating to such Equity Interests; (ii) all voting rights and rights to consent to any particular action(s) by the applicable Pledged Issuer; (iii) all management rights with respect to such Pledged Issuer; (iv) in the case of any Equity Interests consisting of a general partner interest in a partnership, all powers and rights as a general partner with respect to the management, operations and control of the business and affairs of the applicable Pledged Issuer; (v) in the case of any Equity Interests consisting of the membership/limited liability company interests of a managing member in a limited liability company, all powers and rights as a managing member with respect to the management, operations and control of the business and affairs of the applicable Pledged Issuer; (vi) all rights to designate or appoint or vote for or remove any officers, directors, manager(s), general partner(s) or managing member(s) of such Pledged Issuer and/or any members of any board of members/managers/partners/directors that may at any time have any rights to manage and direct the business and affairs of the applicable Pledged Issuer under its Organizational Documents as in effect from time to time or under applicable Law; and (vii) all rights to amend the Organizational Documents of such Pledged Issuer, (viii) in the case of any Equity Interests in a partnership or limited liability company, the status of the holder of such Equity Interests as a “partner”, general or limited, or “member” (as applicable) under the applicable Organizational Documents and/or applicable Law.

Secured Parties ” means, collectively, the Agents, the L/C Issuer, the Bank Product Providers and the Lenders.

Secured Obligations ” has the meaning specified therefor in Section 3 hereof.

Titled Collateral ” means all Collateral for which the title to such Collateral is governed by a Certificate of Title or certificate of ownership, including, without limitation, all motor vehicles (including, without limitation, all trucks, trailers, tractors, service vehicles, automobiles and other mobile equipment) for which the title to such motor vehicles is governed by a Certificate of Title or certificate of ownership.

Trademark Licenses ” means all licenses, contracts or other agreements, whether written or oral, naming any Grantor as licensor or licensee and providing for the grant of any right concerning any Trademark, together with any goodwill connected with and symbolized by any such trademark licenses, contracts or agreements (including, without limitation, all such licenses, contracts or other agreements set forth in Schedule II hereto).

 

6


SECTION 2. Grant of Security Interest . As collateral security for the payment, performance and observance of all of the Secured Obligations, each Grantor hereby pledges and collaterally assigns to the Collateral Agent (and its agents and designees), and grants to the Collateral Agent (and its agents and designees), for the benefit of the Secured Parties, a continuing security interest in, all of the following personal property and Fixtures of such Grantor, wherever located and whether now or hereafter existing and whether now owned or hereafter acquired, of every kind and description, tangible or intangible, including, without limitation (all being collectively referred to herein as the “ Collateral ”):

 

  (a) all Accounts;

 

  (b) all Chattel Paper (whether tangible or electronic);

 

  (c) the Commercial Tort Claims specified on Schedule VI hereto;

 

  (d) all Deposit Accounts, all cash, and all other property from time to time deposited therein or otherwise credited thereto and the monies and property in the possession or under the control of any Agent or any Lender or any affiliate, representative, agent or correspondent of any Agent or any Lender;

 

  (e) all Documents;

 

  (f) all General Intangibles (including, without limitation, all Payment Intangibles, Intellectual Property and Licenses);

 

  (g) all Goods, including, without limitation, all Equipment, Fixtures and Inventory;

 

  (h) all Instruments (including, without limitation, Promissory Notes);

 

  (i) all Investment Property;

 

  (j) all Letter-of-Credit Rights;

 

  (k) all Pledged Interests;

 

  (l) all Supporting Obligations;

 

  (m)

all other tangible and intangible personal property of such Grantor (whether or not subject to the Code), including, without limitation, all bank and other accounts and all cash and all investments therein, all proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of and to any of the property of such Grantor described in the preceding clauses of this Section 2 hereof (including, without limitation, any proceeds of insurance thereon and all causes of action, claims and warranties now or hereafter held by such Grantor in respect of any of the items listed

 

7


  above), and all books, correspondence, files and other Records, including, without limitation, all tapes, disks, cards, software, data and computer programs in the possession or under the control of such Grantor or any other Person from time to time acting for such Grantor that at any time evidence or contain information relating to any of the property described in the preceding clauses of this Section 2 hereof or are otherwise necessary or helpful in the collection or realization thereof; and

 

  (n) all Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any and all of the foregoing Collateral;

in each case, howsoever such Grantor’s interest therein may arise or appear (whether by ownership, security interest, claim or otherwise).

Notwithstanding anything herein to the contrary, the term “Collateral” shall not include Excluded Property unless the provision in the applicable license, contract or agreement to which such Grantor is a party prohibits the grant of a security interest in such Excluded Property (other than property described in clauses (d), (e), (g), (h), (j), (k), (l), (m) or (n) of the definition of “Excluded Property”) (A) has been waived or (B) would be rendered ineffective pursuant to Sections 9-406, 9-408, 9-409 of the Code or other applicable provisions of the Uniform Commercial Code of any relevant jurisdiction or any other applicable law or principles of equity); provided , that (x) immediately upon the ineffectiveness, lapse, termination or waiver of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such right, title and interest as if such provision had never been in effect and (y) the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect the Collateral Agent’s unconditional continuing security interest in and liens upon any rights or interests of a Grantor in or to the proceeds of, or any monies due or to become due under, any such license, contract or agreement. It is the intention of the parties that if Collateral Agent shall fail to have a perfected Lien in any particular property or assets of any Grantor for any reason whatsoever (including such property or assets being Excluded Property), but the provisions of this Agreement and/or of the other Loan Documents, together with all financing statements and other public filings relating to Liens filed or recorded by Collateral Agent against Grantors, would be sufficient to create a perfected Lien in any property or assets that such Grantor may receive upon the sale, lease, license, exchange, transfer or disposition of such particular property or assets, then all such “proceeds” of such particular property or assets shall be included in the Collateral as original collateral that is the subject of a direct and original grant of a security interest as provided for herein (and not merely as Proceeds (as defined in Article 9 of the Code) in which a security interest is created or arises solely pursuant to Section 9-315 of the Code).

SECTION 3. Security for Secured Obligations . The security interest created hereby in the Collateral constitutes continuing collateral security for all of the following obligations, whether now existing or hereafter incurred (the “ Secured Obligations ”):

 

  (a)

the prompt payment by each Grantor, as and when due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or

 

8


  otherwise), of all amounts from time to time owing by it in respect of the Financing Agreement and/or the other Loan Documents, including, without limitation, (i) all Obligations, (ii) in the case of a Guarantor, all Guaranteed Obligations and (iii) to the extent, if any, not already described in the foregoing clauses (i) or (ii), all interest, fees, commissions, charges, expense reimbursements, indemnifications and all other amounts due or to become due under any Loan Document (including, without limitation, all interest, fees, commissions, charges, expense reimbursements, indemnifications and other amounts that accrue after the commencement of any Insolvency Proceeding of any Loan Party, whether or not the payment of such interest, fees, commissions, charges, expense reimbursements, indemnifications and other amounts are unenforceable or are not allowable, in whole or in part, due to the existence of such Insolvency Proceeding); and

 

  (b) the due performance and observance by each Grantor of all of its other Obligations from time to time existing in respect of the Loan Documents.

SECTION 4. Delivery of the Pledged Interests .

 

  (a)

(i) All promissory notes currently evidencing the outstanding Pledged Debt and all other Pledged Debt having an outstanding principal amount in excess of $250,000 and all certificates currently representing the Pledged Shares of any Subsidiary or other Pledged Shares with an aggregate value in excess of $250,000 shall be delivered to the Collateral Agent (or its custodian, designee or other nominee) on or prior to the execution and delivery of this Agreement. All other promissory notes, certificates and Instruments constituting Pledged Interests having a face or principal amount aggregating in excess of $250,000 from time to time required to be pledged to the Collateral Agent pursuant to the terms of this Agreement or the Financing Agreement (the “ Additional Collateral ”) shall be delivered to the Collateral Agent (or its custodian, designee or other nominee) promptly upon, but in any event within ten (10) Business Days of, receipt thereof by or on behalf of any of the Grantors. All such promissory notes, certificates and Instruments shall be held by or on behalf of the Collateral Agent (or its custodian, designee or other nominee) pursuant hereto and shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment or undated stock powers executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent. If any Pledged Interests with an aggregate value in excess of $250,000 consists of uncertificated securities, unless the immediately following sentence is applicable thereto, such Grantor shall promptly notify the Collateral Agent thereof and at the Collateral Agent’s reasonable request cause the Collateral Agent (or its designated custodian or nominee) to become the registered holder thereof, or cause each issuer of such securities to agree that it will comply with instructions originated by the Collateral Agent with respect to such securities without further consent by such Grantor. If any Pledged Interests consists of security entitlements with an aggregate value in excess of

 

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  $250,000, such Grantor shall promptly notify the Collateral Agent thereof and at the Collateral Agent’s reasonable request transfer such security entitlements to the Collateral Agent (or its custodian, nominee or other designee), or cause the applicable securities intermediary to agree that it will comply with entitlement orders by the Collateral Agent without further consent by such Grantor.

 

  (ii) Within ten (10) Business Days (or such later time as the Agents may agree in writing) of the receipt by any Grantor of any Additional Collateral, a Pledge Amendment, duly executed by such Grantor, in substantially the form of Exhibit A hereto (a “ Pledge Amendment ”), shall, unless waived by the Collateral Agent, be delivered to the Collateral Agent, in respect of the Additional Collateral that must be pledged pursuant to this Agreement and the Financing Agreement. The Pledge Amendment shall from and after delivery thereof constitute part of Schedules VII and VIII hereto. Each Grantor hereby authorizes the Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all promissory notes, certificates or Instruments listed on any Pledge Amendment delivered to the Collateral Agent (or its custodian, designee or other nominee) shall for all purposes hereunder constitute Pledged Interests and such Grantor shall be deemed upon delivery thereof to have made the representations and warranties set forth in Section 5 hereof with respect to such Additional Collateral.

 

  (b) If any Grantor shall receive, by virtue of such Grantor’s being or having been an owner of any Pledged Interests, any (i) stock certificate (including, without limitation, any certificate representing a stock dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock split, spin-off or split-off), promissory note or other Instrument, (ii) option or right, whether as an addition to, substitution for, or in exchange for, any Pledged Interests, or otherwise, (iii) dividends payable in cash or in securities or other property or (iv) dividends, distributions, cash, Instruments, Investment Property and other property in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, such Grantor shall (but in the case of subclauses (iii) and (iv) of this Section 4(b), to the extent permitted to be retained hereunder or pursuant to the Financing Agreement) receive such stock certificate, promissory note, Instrument, option, right, payment or distribution in trust for the benefit of the Collateral Agent, shall segregate it from such Grantor’s other property and shall deliver it forthwith to the Collateral Agent (or its custodian, designee or other nominee), in the exact form received, with any necessary endorsement and/or appropriate stock powers duly executed in blank, to be held by the Collateral Agent (or its custodian, designee or other nominee) subject to the terms hereunder, as Pledged Interests and as further collateral security for the Secured Obligations.

 

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SECTION 5. Representations and Warranties . Each Grantor jointly and severally represents and warrants as follows:

 

  (a) As of the date hereof, Schedule I hereto sets forth (i) the exact legal name of each Grantor, (ii) the state or jurisdiction of organization of each Grantor, (iii) the type of organization of each Grantor and (iv) the organizational identification number of each Grantor or states that no such organizational identification number exists.

 

  (b) This Agreement is, and each other Loan Document to which any Grantor is or will be a party, when executed and delivered, will be, a legal, valid and binding obligation of such Grantor, enforceable against such Grantor in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws.

 

  (c) There is no pending or, to the knowledge of an Authorized Officer of such Grantor, threatened action, suit or proceeding affecting such Grantor before any court or other Governmental Authority or any arbitrator that could reasonably be expected to adversely affect the grant by such Grantor, or the perfection, of the security interest purported to be created hereby in the Collateral, or the exercise by the Collateral Agent of any of its rights or remedies hereunder.

 

  (d) Each Grantor’s chief place of business and chief executive office, the place where such Grantor keeps its Records concerning Accounts and all originals of all Chattel Paper are located at the addresses specified therefor in Schedule III hereto (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof or as otherwise notified to the Collateral Agent pursuant to Section 7.01(a)(v) of the Financing Agreement). None of the Accounts is evidenced by Promissory Notes or other Instruments (other than items deposited or to be deposited for collection in the ordinary course or those that have been delivered to the Collateral Agent in accordance with Section 4(a) having a face or principal amount in excess of $250,000). Set forth in Schedule IV hereto is a complete and accurate list, as of the date of this Agreement, of each Deposit Account, Securities Account and Commodities Account of each Grantor, together with the name and address of each institution at which each such Account is maintained, the account number for each such Account and a description of the purpose of each such Account. Set forth in Schedule II hereto is (x) a complete and correct list of each trade name used by such Grantor as of the Effective Date and (y) the legal name of each Person from which such Grantor has acquired any substantial part of the Collateral outside of the ordinary course of business within four months prior to the date hereof.

 

  (e) Schedule II hereto sets forth a true and complete list of all Licenses material to the business of each Grantor as of the date hereof (excluding any Licenses of commercially available, off-the-shelf software).

 

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  (f) To Grantor’s knowledge, Grantors own and control, or otherwise possess adequate rights to use, all material Intellectual Property necessary to conduct their business. Schedule II hereto sets forth a true and complete list of all issued, registered, or applied-for material Intellectual Property owned or used by each Grantor as of the date hereof. To the applicable Grantor’s knowledge, as of the date hereof, all such Intellectual Property owned by such Grantor is valid, subsisting and enforceable, and has not been abandoned in whole or in part and no such Intellectual Property is subject to any outstanding order, judgment or decree restricting its use or adversely affecting the Grantor’s rights thereto. As of the Effective Date, except as set forth in Schedule II hereto, no such Intellectual Property owned by the Grantor is the subject of any licensing agreement.

 

  (g) To the applicable Grantor’s knowledge, (i) none of the material Other Proprietary Rights or material Trade Secrets owned by such Grantor have been divulged, disclosed or appropriated to the material detriment of such Grantor for the benefit of any other Person other than such Grantor; and (ii) no employee, independent contractor or agent of any Grantor is in material default or material breach of any term of any employment agreement, non-disclosure agreement, assignment of inventions agreement or similar agreement, or contract relating an any way to the protection, ownership, development, use or transfer of such Grantor’s Intellectual Property, except for in the case of clauses (i) and (ii) that could not reasonably be expected to cause a Material Adverse Effect.

 

  (h) The Existing Issuers set forth in Schedule VIII identified as a Subsidiary of such Grantor are such Grantor’s only Subsidiaries existing on the date hereof. The Pledged Shares of the Existing Issuers have been duly authorized and validly issued and the Pledged Shares of any Existing Issuer that is a corporation organized under the laws of any jurisdiction of the United States are fully paid and nonassessable and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as noted in Schedule VIII hereto, the Pledged Shares constitute 100% of the issued shares of the Equity Interests of the Existing Issuers as of the date hereof. All other shares of the Equity Interests of such Grantor’s Subsidiaries constituting Pledged Shares will be duly authorized and validly issued, and if the relevant Pledged Issuer is a corporation organized under the laws of any jurisdiction of the United States, fully paid and nonassessable.

 

  (i) The promissory notes currently evidencing the Pledged Debt issued by any Subsidiary of such Grantor have been, to such Grantors’ knowledge, duly authorized executed and delivered by the respective makers thereof, and all such promissory notes are legal, valid and binding obligations of such makers, enforceable against such makers in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws and principles of equity.

 

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  (j) Except as otherwise provided in the Financing Agreement, such Grantor is and will be at all times the sole and exclusive owner of, or otherwise have and will have rights in, the Collateral of such Grantor free and clear of any Lien except for the Permitted Liens.

 

  (k) [Reserved]

 

  (l) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other regulatory body, or any other Person, is required on the date hereof for (i) the due execution, delivery and performance by any Grantor of this Agreement, (ii) the grant by any Grantor of the security interest purported to be created hereby in the Collateral or (iii) the exercise by the Collateral Agent of any of its rights and remedies hereunder, except, in the case of this clause (iii), as may be required in connection with any sale of any Pledged Interests by laws affecting the offering and sale of securities generally or any consents, registrations or filings necessary to transfer title or ownership of any Collateral in connection with a disposition thereof.

 

  (m) This Agreement creates a legal, valid and enforceable security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral, as security for the Secured Obligations, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws and principles of equity. The compliance with the requirements of this Agreement will, as of the date that such actions are taken, and subject to exceptions for any Collateral for which such actions are not required, result in the perfection of such security interests to the extent such perfection is governed by the laws of the United States or any jurisdiction thereof (other than with respect to Collateral which cannot be perfected by (i) the filing of a UCC financing statement in the applicable jurisdiction, (ii) the taking of the actions specified in Section 6(i)(vi) with respect to Intellectual Property or (iii) the actions required by Article VIII of the Financing Agreement), subject in priority only to the Permitted Liens for the benefit of the Secured Parties, and the recording of such instruments described above.

 

  (n) [Reserved]

 

  (o) (i) With respect to the Equity Interests included in the Collateral of each Grantor and its Subsidiaries that is a partnership or a limited liability company and does not have certificated equity, either (I) the partnership interests or membership interests of each such Person are not (A) dealt in or traded on securities exchanges or in securities markets, (B) securities for the purposes of Article 8 of any relevant Uniform Commercial Code, (C) investment company securities within the meaning of Section 8-103 of any relevant Uniform Commercial Code or (D) evidenced by a certificate, or (II) the Grantor has taken such actions as are required to grant the Collateral Agent control, as defined in Article 9 of the UCC. Such partnership interests or membership interests constitute General Intangibles.

 

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SECTION 6. Covenants as to the Collateral . So long as any of the Secured Obligations have not been Paid in Full or unless the Collateral Agent shall otherwise consent in writing:

 

  (a)

Further Assurances . Subject to any express limitations otherwise specified herein, each Grantor will at its expense, at any time and from time to time, promptly execute and deliver all further instruments and documents and take all further action that, in each case, the Collateral Agent may reasonably request in order (i) to perfect and protect, or maintain the perfection of, the security interest and Lien purported to be created hereby (other than with respect to the perfection of the security interest created hereby in foreign Intellectual Property and Licenses); (ii) to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder in respect of the Collateral in the manner contemplated herein; or (iii) to otherwise effect the purposes of this Agreement, including, without limitation: (A) marking conspicuously all Chattel Paper and Instruments, in excess of $250,000 with a legend, in form and substance reasonably satisfactory to the Collateral Agent, indicating that such Chattel Paper or Instrument (other than items deposited or to be deposited for collection is subject to the security interest created hereby, (B) if any Account shall be evidenced by a Promissory Note or other Instrument or Chattel Paper having a face or principal amount, individually or in the aggregate, in excess of $250,000, to the extent required hereunder, delivering and pledging to the Collateral Agent such Promissory Note, other Instrument or Chattel Paper, duly endorsed and accompanied by executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to the Collateral Agent, (C) executing and filing (to the extent, if any, that such Grantor’s signature is required thereon) or authenticating the filing of, such financing or continuation statements, or amendments thereto, (D) with respect to issued, registered or applied-for Intellectual Property Collateral hereafter existing and not covered by an appropriate security interest grant, the executing and recording in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, appropriate instruments granting a security interest, as may be necessary or that the Collateral Agent may request in order to perfect and preserve the security interest purported to be created hereby, (E) after the occurrence and continuance of an Event of Default, at the request of the Collateral Agent, delivering to the Collateral Agent irrevocable proxies in respect of the Pledged Interests in accordance with the terms of this Agreement, (F) furnishing to the Collateral Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Collateral Agent may reasonably request, all in reasonable detail, and (G) taking all actions required by law in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction; provided , that (x) no Grantor shall be obligated to take any such actions in any jurisdiction other than the

 

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  United States, and (y) no Grantor shall be required to take any action if such Grantor demonstrates to the Collateral Agent’s reasonable satisfaction that the costs or other detriment to such Grantor of taking such action are disproportionate to the value of the relevant Collateral or the other benefits to the Collateral Agent. No Grantor shall take any action, or fail to take any action, which would impair the validity or enforceability of the Collateral Agent’s security interest in and Lien on any Collateral.

 

  (b) Commercial Tort Claims . If at any time after the date hereof, any Grantor becomes aware of, acquires or holds any Commercial Tort Claim reasonably expected to exceed $250,000, promptly notify the Collateral Agent in a writing signed by such Grantor setting forth a brief description of such Commercial Tort Claim and, if requested by the Collateral Agent, granting to the Collateral Agent a security interest therein and in the proceeds thereof, which writing shall incorporate the provisions hereof and shall be in form and substance reasonably satisfactory to the Collateral Agent.

 

  (c) Condition of Equipment . Each Grantor will maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its Equipment which is necessary in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty events excepted, except to the extent any such failure to preserve could not reasonably be expected to result in a Material Adverse Effect.

 

  (d) [Reserved]

 

  (e) [Reserved]

 

  (f)

Provisions Concerning the Accounts and the Licenses . The Collateral Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to notify the Account Debtors or obligors under any Accounts of the assignment of such Accounts to the Collateral Agent and to direct such Account Debtors or obligors to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent or its designated agent and, upon such notification and at the expense of such Grantor and to the extent permitted by law, to enforce collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If any Event of Default shall have occurred and be continuing after receipt by any Grantor of a notice from the Collateral Agent that the Collateral Agent has notified, intends to notify, or has enforced or intends to enforce a Grantor’s rights against the Account Debtors or obligors under any Accounts as referred to in the immediately preceding sentence, (A) all amounts and proceeds (including Instruments) received by such Grantor in respect of the Accounts shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over to the Collateral Agent

 

15


  or its designated agent in the same form as so received (with any necessary endorsement) to be held as cash collateral and applied as specified in Section 9(c) hereof, and (B) such Grantor will not adjust, settle or compromise the amount or payment of any Account or release wholly or partly any Account Debtor or obligor thereof or allow any credit or discount thereon. In addition, and without contradicting or limiting any of the provisions of Article VIII of the Financing Agreement (or any of the obligations, covenants and duties of Grantors thereunder or any rights or remedies of any Agent thereunder) upon the occurrence and during the continuance of an Event of Default, the Collateral Agent may (in its sole and absolute discretion) direct any or all of the banks and financial institutions with which any Grantor either maintains a Deposit Account or a lockbox or deposits the proceeds of any Accounts to send immediately to the Collateral Agent or its designated agent by wire transfer (to such account as the Collateral Agent shall specify, or in such other manner as the Collateral Agent shall direct) all or a portion of such securities, cash, investments and other items held by such institution. Any such securities, cash, investments and other items so received by the Collateral Agent or its designated agent shall (in the sole and absolute discretion of the Collateral Agent) be held as additional Collateral for the Secured Obligations or distributed in accordance with Section 9 hereof.

 

  (g) Provisions Concerning the Pledged Interests . Each Grantor will

 

  (i) at the Grantor’s joint and several expense, promptly deliver to the Collateral Agent a copy of each material notice or other material communication received by it in respect of the Pledged Interests having a value in excess of $250,000;

 

  (ii) at the Grantors’ joint and several expense, defend the Collateral Agent’s right, title and security interest in and to the Pledged Interests against the claims of any Person;

 

  (iii) not make or consent to any amendment or other modification or waiver with respect to any Pledged Interests or enter into any agreement or permit to exist any restriction with respect to any Pledged Interests (other than as permitted pursuant to the Loan Documents); and

 

  (iv) not permit the issuance of (A) any additional shares of any class of Equity Interests of any Pledged Issuer, (B) any securities convertible voluntarily by the holder thereof or automatically upon the occurrence or non-occurrence of any event or condition into, or exchangeable for, any such Equity Interests or (C) any warrants, options, contracts or other commitments entitling any Person to purchase or otherwise acquire any such Equity Interests, in each case, except as otherwise permitted under the Loan Documents.

 

  (h) Transfers and Other Liens .

 

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  (i) Except to the extent permitted by the Financing Agreement, no Grantor will sell, assign (by operation of law or otherwise), lease, license, exchange or otherwise transfer or dispose of any of the Collateral.

 

  (ii) Except to the extent permitted by the Financing Agreement, no Grantor will create, suffer to exist or grant any Lien upon or with respect to any Collateral.

 

  (i) Intellectual Property .

 

  (i) Each Grantor has duly executed and delivered the applicable Grant of a Security Interest substantially in the form attached hereto as Exhibit B.

 

  (ii) Each Grantor agrees that it will not do any act or omit to do any act whereby any issued or applied for Patent it owns that is material to the conduct of such Grantor’s business may become invalidated or dedicated to the public (other than the expiration of a Patent at the end of its statutory term), and agrees that it shall continue to mark any products covered by an enforceable Patent with the relevant patent number as necessary to establish and preserve its rights under applicable patent laws, except where the failure to do so, together with all other such failures hereunder since the Effective Date, could not reasonably be expected to have a Material Adverse Effect.

 

  (iii) Each Grantor will, for each Trademark it owns that is material to the conduct of such Grantor’s business, (A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use, (B) maintain, and take all commercially reasonable steps to ensure that any licensee of such Trademark maintains, the quality of products and services offered under such Trademark, (C) display such Trademark with notice of US or non-US registration to the extent reasonably necessary to establish and preserve its rights under applicable law, and (D) not knowingly use or knowingly permit the use of such Trademark in violation of any material third party rights, except, in each case, where the failure to do so, together with all other such failures hereunder since the Effective Date, could not reasonably be expected to result in a Material Adverse Effect.

 

  (iv) Each Grantor will, for each work covered by a material Copyright that it owns, continue to publish, reproduce, display, adopt and distribute the work with, and affix to the work, appropriate copyright notice as necessary to establish and preserve its rights under applicable copyright laws, except where the failure to do so, together with all other such failures hereunder since the Effective Date, could not reasonably be expected to result in a Material Adverse Effect.

 

  (v)

Each Grantor shall notify the Collateral Agent promptly if it knows that any Intellectual Property material to the conduct of the business of the Loan Parties, taken as a whole, may become abandoned or dedicated to the public (other than the expiration of Patents and Copyrights at the end of their

 

17


  statutory terms), or of any final materially adverse determination (including the institution of, or any such determination in, any proceeding in the United States Patent and Trademark Office, United States Copyright Office or any court or similar office of any country that could reasonably be expected to result in a Material Adverse Effect) regarding such Grantor’s ownership of any such Intellectual Property, its right to register the same, or its right to keep and maintain the same.

 

  (vi) In the event that any Grantor files an application or registration for any material Intellectual Property with the United States Patent and Trademark Office, United States Copyright Office, or any state office or agency, either itself or through any agent, employee, licensee or designee, the provisions of Section 2 hereof shall automatically apply thereto. Each Grantor shall give to the Collateral Agent notice thereof on at least a quarterly basis in connection with the delivery of each certificate under Section 7.01(a)(iv) of the Financing Agreement, and, upon the reasonable request of the Collateral Agent, execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent’s security interest in such Intellectual Property, including execution of a Grant of Security Interest, substantially in the form of Exhibit B hereto, for filing, with the United States Patent and Trademark Office or United States Copyright Office (as applicable), and each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable for so long as the security interest in the respective item of Intellectual Property remains in effect.

 

  (vii) Each Grantor will take all reasonable steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office or United States Copyright Office (as applicable), to pursue each material application relating to the Intellectual Property of such Grantor (and to obtain the relevant grant or registration when it is feasible to do so), and to maintain each issued Patent and each registration of the Trademarks and Copyrights that are material to the conduct of any Grantor’s business as conducted or currently contemplated to be conducted, including by timely filing applications for renewal, affidavits of use, affidavits of incontestability, and payment of maintenance fees, and, if consistent with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties.

 

  (viii) In the event that any Grantor has reason to believe that any Collateral consisting of Intellectual Property owned by such Grantor that is material to the conduct of such Grantor’s business has been infringed, misappropriated or diluted by a third party, such Grantor shall take such actions as are appropriate under the circumstances and consistent with its reasonable business judgment, to protect its rights in such Collateral and promptly shall notify the Collateral Agent of the initiation of any suit with respect thereto.

 

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  (ix) Upon and during the continuance of an Event of Default, (A) no Grantor shall abandon or otherwise permit any Intellectual Property to become invalid and (B) upon the request of the Collateral Agent, each Grantor shall use its best efforts to obtain all requisite consents or approvals by the licensor of each License that constitutes Collateral in order to effect the assignment of such license to the Collateral Agent or its designee.

 

  (x) Each Grantor shall execute, authenticate and deliver any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent’s security interest hereunder in such Intellectual Property and the General Intangibles of such Grantor relating thereto or represented thereby. Each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable for so long as this Agreement has not terminated in accordance with its terms.

 

  (j) Deposit, Commodities and Securities Accounts . Subject to any exceptions pursuant to Article VIII of the Financing Agreement, each Grantor shall cause each bank and other financial institution with an account referred to in Schedule IV hereto to execute and deliver to the Collateral Agent (or its designee) a control agreement, in form and substance reasonably satisfactory to the Collateral Agent. Subject to the following sentence, without the prior written consent of the Collateral Agent, no Grantor shall make or maintain any Deposit Account, Commodity Account or Securities Account except for (i) the accounts set forth in Schedule IV hereto or (ii) accounts with respect to which the applicable bank or financial institution shall have executed and delivered to the Collateral Agent a control agreement with respect to such account. The provisions of this Section 6(j) shall not apply to (i) Deposit Accounts or Securities Accounts for which the Collateral Agent or the Administrative Agent is the depositary or securities intermediary (provided that, upon request of Administrative Agent, Grantors shall enter into a control agreement with Administrative Agent as depositary bank and with Collateral Agent with respect to any such Deposit Account maintained with Administrative Agent) and (ii) Deposit Accounts not required to be subject to a control agreement pursuant to the definition of “Cash Management Account” and Section 8.01 of the Financing Agreement.

 

  (k) [Reserved]

 

  (l)

Control . Each Grantor hereby agrees to take any or all action that the Collateral Agent may reasonably request in order for the Collateral Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the Code and with respect to the following Collateral: (i) Deposit Accounts (to the extent required by the Financing Agreement), (ii) Electronic Chattel

 

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  Paper, (iii) Investment Property (other than Investment Property not constituting Additional Collateral), and (iv) Letter-of-Credit Rights with a face amount in excess of $500,000 and a term equal to or longer than six months. Each Grantor hereby acknowledges and agrees that any agent or designee of the Collateral Agent shall be deemed to be a “secured party” with respect to the Collateral under the control of such agent or designee for all purposes; provided , that (x) no Grantor shall be required to take any actions to perfect any security interest to the extent that such action is excluded from the operation of any other clause of this Agreement, and (y) in the case of letter of credit issuers, or issuers of uncertificated securities, such Grantor shall be required only to make commercially reasonable efforts for a period of thirty (30) days to obtain such third party’s consent to the relevant action.

 

  (m) Records; Inspection and Reporting .

 

  (i) Each Grantor shall keep adequate records concerning the Accounts, Chattel Paper and Pledged Interests.

 

  (ii) Except as otherwise expressly permitted by Section 7.02(m) of the Financing Agreement, no Grantor shall change (A) its name, identity or form of organization, (B) its jurisdiction of incorporation or organization as set forth in Schedule I hereto or (C) its chief executive office as set forth in Schedule III hereto. Each Grantor shall promptly notify the Collateral Agent upon obtaining an organizational identification number, if on the date hereof such Grantor did not have such identification number.

 

  (n) Partnership and Limited Liability Company Interest . Except with respect to partnership interests and membership interests evidenced by a certificate, which certificate has been pledged and delivered to the Collateral Agent pursuant to Section 4 hereof, or the Grantor has taken such actions as are required to grant the Collateral Agent control, as defined in Article 9 of the UCC, no Grantor that is a partnership or a limited liability company shall, nor shall any Grantor with any Subsidiary that is a partnership or a limited liability company, permit such partnership interests or membership interests to (i) be dealt in or traded on securities exchanges or in securities markets, (ii) become a security for purposes of Article 8 of any relevant Uniform Commercial Code, (iii) become an investment company security within the meaning of Section 8-103 of any relevant Uniform Commercial Code or (iv) be evidenced by a certificate, unless such certificate is delivered to the Collateral Agent. Each Grantor agrees that such partnership interests or membership interests shall constitute General Intangibles.

 

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SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged Interests .

 

  (a) So long as no Event of Default shall have occurred and be continuing and the Collateral Agent has not provided written notice to the Administrative Borrower of its exercise of its rights hereunder:

 

  (i) each Grantor may exercise any and all voting and other consensual rights pertaining to any Pledged Interests for any purpose not inconsistent with the terms of this Agreement, the Financing Agreement or the other Loan Documents; provided , however , that (A) each Grantor will give the Collateral Agent prior notice of the manner in which it intends to exercise, or the reasons for refraining from exercising any such right that could reasonably be expected to adversely affect in any material respect the value, liquidity or marketability of any Collateral or the creation, perfection and priority of the Collateral Agent’s Lien and (B) such Grantor shall refrain from exercising any voting or other consensual right if the effect thereof could reasonably be likely to adversely affect in any material respect the value, liquidity or marketability of any Collateral (excluding disposition transactions permitted under the Financing Agreement) or the creation, perfection and priority of the Collateral Agent’s Lien;

 

  (ii) each of the Grantors may receive and retain any and all dividends, interest or other distributions paid in respect of the Pledged Interests to the extent permitted by the Financing Agreement; provided , however , that (A) dividends and interest paid or payable other than in cash in respect of, and Instruments and other property received, receivable or otherwise distributed in respect of or in exchange for, any Pledged Interests that constitute property of a type that is required to be delivered hereunder, and (B) any dividend, interest or other distribution or payment which at the time of such payment was not permitted by the Financing Agreement shall be, and shall forthwith be delivered to the Collateral Agent, to hold as Pledged Interests and shall, if received by any of the Grantors, be received in trust for the benefit of the Collateral Agent, shall be segregated from the other property or funds of the Grantors, and shall be forthwith delivered to the Collateral Agent in the exact form received with any necessary endorsement and/or appropriate stock powers duly executed in blank, to be held by the Collateral Agent as Pledged Interests and as further collateral security for the Secured Obligations; and

 

  (iii) the Collateral Agent will execute and deliver (or cause to be executed and delivered) to a Grantor all such proxies and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 7(a)(i) hereof and to receive the dividends, interest and/or other distributions which it is authorized to receive and retain pursuant to Section 7(a)(ii) hereof.

 

21


  (b) Upon the occurrence and during the continuance of an Event of Default and after written notice from the Collateral Agent to the Administrative Borrower of its exercise of its rights hereunder:

 

  (i) all rights of each Grantor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 7(a)(i) hereof, and to receive the dividends, distributions, interest and other payments that it would otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) hereof, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights and to receive and hold as Pledged Interests such dividends, distributions and interest payments;

 

  (ii) the Collateral Agent is authorized to notify each debtor with respect to the Pledged Debt to make payment directly to the Collateral Agent (or its designee) until such time as no Event of Default is no longer in effect, and until such time, the Collateral Agent may collect any and all moneys due or to become due to any Grantor in respect of the Pledged Debt, and each of the Grantors hereby authorizes each such debtor to make such payment directly to the Collateral Agent (or its designee) without any duty of inquiry;

 

  (iii) without limiting the generality of the foregoing, the Collateral Agent may at its option exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Interests as if it were the absolute owner thereof, including, without limitation, the right to exchange, in its discretion, any and all of the Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other adjustment of any Pledged Issuer, or upon the exercise by any Pledged Issuer of any right, privilege or option pertaining to any Pledged Interests, and, in connection therewith, to deposit and deliver any and all of the Pledged Interests with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as it may determine; and

 

  (iv) all dividends, distributions, interest and other payments that are received by any of the Grantors contrary to the provisions of Section 7(b)(i) hereof shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other funds of the Grantors, and shall be forthwith paid over to the Collateral Agent as Pledged Interests in the exact form received with any necessary endorsement and/or appropriate stock powers duly executed in blank, to be held by the Collateral Agent as Pledged Interests and as further collateral security for the Secured Obligations.

SECTION 8. Additional Provisions Concerning the Collateral .

 

  (a)

To the maximum extent permitted by applicable law, and for the purpose of taking any action that the Collateral Agent may deem necessary or advisable to perfect and preserve the priority of the security interests granted under this Agreement in accordance with the requirements hereof, each Grantor hereby (i) authorizes the Collateral Agent to execute any such agreements,

 

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  instruments or other documents in such Grantor’s name and to file such agreements, instruments or other documents in such Grantor’s name and in any appropriate filing office, (ii) authorizes the Collateral Agent at any time and from time to time to file, one or more financing or continuation statements and amendments thereto, relating to the Collateral (including, without limitation, any such financing statements that (A) describe the Collateral as “all assets” or “all personal property” (or words of similar effect) or that describe or identify the Collateral by type or in any other manner as the Collateral Agent may determine, regardless of whether any particular asset of such Grantor falls within the scope of Article 9 of the Uniform Commercial Code or whether any particular asset of such Grantor constitutes part of the Collateral, and (B) contain any other information required by Part 5 of Article 9 of the Code for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including, without limitation, whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor) and (iii) ratifies such authorization to the extent that the Collateral Agent has filed any such financing statements, continuation statements, or amendments thereto, prior to the date hereof. A photocopy or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.

 

  (b)

Each Grantor hereby irrevocably appoints the Collateral Agent as its attorney-in-fact and proxy, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, from time to time after the occurrence and during the continuance of an Event of Default in the Collateral Agent’s discretion, to take any action and to execute any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement (subject to the rights of a Grantor under Section 6 hereof and Section 7(a) hereof), including, without limitation, after the occurrence and during the continuance of an Event of Default (i) to obtain and adjust insurance required to be paid to the Collateral Agent pursuant to the Financing Agreement, (ii) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any Collateral, (iii) to receive, endorse, and collect any drafts or other Instruments, Documents and Chattel Paper in connection with clause (i) or (ii) above, (iv) to receive, indorse and collect all Instruments made payable to such Grantor representing any dividend, interest payment or other distribution in respect of any Pledged Interests and to give full discharge for the same, (v) to file any claims or take any action or institute any proceedings which the Collateral Agent may deem necessary or desirable for the collection of any Collateral or otherwise to enforce the rights of the Collateral Agent and the Lenders with respect to any Collateral, (vi) to execute assignments, licenses and other documents to enforce the rights of the Collateral Agent and the Lenders with respect to any Collateral, (vii) to pay or discharge taxes or Liens levied or placed upon or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be

 

23


  determined by the Collateral Agent in its sole discretion, and such payments made by the Collateral Agent to become Obligations of such Grantor to the Collateral Agent, due and payable immediately without demand, and (viii) to sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, assignments, verifications and notices in connection with Accounts, Chattel Paper and other documents relating to the Collateral. This power is coupled with an interest and is irrevocable until the date on which all of the Secured Obligations (other than unasserted contingent indemnification obligations) have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents.

 

  (c)

For the purpose of enabling the Collateral Agent to exercise rights and remedies hereunder, at such time after the occurrence and during the continuance of an Event of Default as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby grants to the Collateral Agent an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Grantor) to use or sublicense any Intellectual Property now or hereafter owned by any Grantor, wherever the same may be located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof (to the extent permitted by licenses for such computer programs); provided that any such Trademark license will contain reasonable and customary quality control provisions. Notwithstanding anything contained herein to the contrary, but subject to the provisions of the Financing Agreement that limit the right of a Grantor to dispose of its property and Section 6(i) hereof, so long as no Event of Default shall have occurred and be continuing, each Grantor may exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or take other actions with respect to the Intellectual Property in the ordinary course of its business. In furtherance of the foregoing, unless an Event of Default shall have occurred and be continuing, the Collateral Agent shall from time to time, upon the request of a Grantor, promptly execute and deliver any instruments, certificates or other documents, in the form so requested, which such Grantor shall have certified are appropriate (in such Grantor’s judgment) to allow it to take any action permitted above (including relinquishment of the license provided pursuant to this clause (c) as to any Intellectual Property). Further, upon the date on which all of the Secured Obligations (other than unasserted contingent indemnification obligations) have been Paid in Full after the termination of each Lender’s Commitment, the licenses granted to the Collateral Agent pursuant to this clause (c) shall automatically terminate and the Collateral Agent (subject to Section 13(e) hereof) shall release and reassign to the Grantors all of the Collateral Agent’s right, title and interest in and to the Intellectual Property, and the Licenses, all without recourse, representation or warranty whatsoever and at the Grantors’ sole expense. The exercise of rights and remedies hereunder by the Collateral Agent shall not terminate the rights of the holders of any licenses or sublicenses theretofore granted by any Grantor either prior

 

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  to the date of this Agreement or granted in accordance with the second sentence of this clause (c). Each Grantor hereby releases the Collateral Agent from any claims, causes of action and demands at any time arising out of or with respect to any actions taken or omitted to be taken by the Collateral Agent under the powers of attorney granted herein other than actions taken or omitted to be taken through the Collateral Agent’s gross negligence, bad faith or willful misconduct, as determined by a final determination of a court of competent jurisdiction. .

 

  (d) If any Grantor fails to perform any agreement or obligation contained herein, the Collateral Agent may itself perform, or cause performance of, such agreement or obligation, in the name of such Grantor or the Collateral Agent, and the expenses of the Collateral Agent incurred in connection therewith shall be jointly and severally payable by the Grantors pursuant to Section 10 hereof and shall be secured by the Collateral.

 

  (e) The powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Other than the exercise of reasonable care to assure the safe custody of any Collateral in its possession, the accounting for moneys actually received by it hereunder and other duties imposed on the Collateral Agent as a secured party by operation of the Code and other applicable laws, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral and shall be relieved of all responsibility for any Collateral in its possession upon surrendering it or tendering surrender of it to any of the Grantors (or whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct). The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property, it being understood that the Collateral Agent shall not have responsibility for ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters. The Collateral Agent shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehouseman, carrier, forwarding agency, consignee or other agent or bailee selected by the Collateral Agent in good faith.

 

  (f)

Anything herein to the contrary notwithstanding (i) each Grantor shall remain liable under the Licenses and otherwise in respect of the Collateral to the extent set forth therein to perform all of its obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its obligations under such Licenses or otherwise in respect of the

 

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  Collateral, and (iii) the Collateral Agent shall not have any obligation or liability by reason of this Agreement under such Licenses or otherwise in respect of the Collateral, nor shall the Collateral Agent be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

 

  (g) The Collateral Agent may at any time after the occurrence during the continuance of an Event of Default in its discretion (i) without notice to any Grantor, transfer or register in the name of the Collateral Agent or any of its nominees any or all of the Pledged Interests, subject only to the revocable rights of such Grantor under Section 7(a) hereof, and (ii) exchange certificates or Instruments constituting Pledged Interests for certificates or Instruments of smaller or larger denominations.

SECTION 9. Remedies Upon Default . If any Event of Default shall have occurred and be continuing:

 

  (a)

The Collateral Agent may exercise in respect of the Collateral, in addition to any other rights and remedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party upon default under the Code (whether or not the Code applies to the affected Collateral), and also may (i) take absolute control of the Collateral, including, without limitation, transfer into the Collateral Agent’s name or into the name of its nominee or nominees (to the extent the Collateral Agent has not theretofore done so) and thereafter receive, for the benefit of the Collateral Agent and the Lenders, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, (ii) require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place or places to be designated by the Collateral Agent that is reasonably convenient to both parties, and the Collateral Agent may enter into and occupy any premises owned or leased by any Grantor where the Collateral or any part thereof is located or assembled for a reasonable period in order to effectuate the Collateral Agent’s rights and remedies hereunder or under law, without obligation to any Grantor in respect of such occupation, and (iii) without notice except as specified below and without any obligation to prepare or process the Collateral for sale, (A) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s offices, at any exchange or broker’s board or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable and/or (B) lease, license or otherwise dispose of the Collateral or any part thereof upon such terms as the Collateral Agent may deem commercially reasonable. Each Grantor agrees that, to the extent notice of sale or any other disposition of the Collateral shall be required by law, at least ten (10) days’ prior notice to the applicable Grantor of the time and place

 

26


  of any public sale or the time after which any private sale or other disposition of the Collateral is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale or other disposition of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the extent not prohibited by law, each Grantor hereby waives any claims against the Collateral Agent and the Lenders arising by reason of the fact that the price at which the Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree, and to the extent not prohibited by law, waives all rights that such Grantor may have to require that all or any part of the Collateral be marshaled upon any sale (public or private) thereof. Each Grantor hereby acknowledges that (i) any such sale of the Collateral by the Collateral Agent shall be made without warranty, (ii) the Collateral Agent may specifically disclaim any warranties of title, possession, quiet enjoyment or the like, (iii) the Collateral Agent may bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness), if permitted by law, for the purchase, lease, license or other disposition of the Collateral or any portion thereof for the account of the Collateral Agent (on behalf of itself and the Lenders) and (iv) such actions set forth in clauses (i), (ii) and (iii) above shall not adversely affect the commercial reasonableness of any such sale of the Collateral. In addition to the foregoing, (i) upon written notice to any Grantor from the Collateral Agent, each Grantor shall cease any use of the Intellectual Property or any trademark, patent or copyright similar thereto for any purpose described in such notice; (ii) the Collateral Agent may, at any time and from time to time, upon ten (10) days’ prior notice to any Grantor, license, on a non-exclusive basis, any of the Intellectual Property, throughout the universe for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; and (iii) the Collateral Agent may, at any time, pursuant to the authority granted in Section 8 hereof (such authority being effective solely upon the occurrence and during the continuance of an Event of Default), execute and deliver on behalf of a Grantor, one or more instruments of assignment of the Intellectual Property Collateral owned by such Grantor (or any application or registration in the United States Patent and Trademark Office or the United States Copyright Office). If an assignment of Intellectual Property shall have been made as provided herein, and if such Event of Default is no longer continuing (and no other Event of Default shall have occurred and be continuing), the Collateral Agent shall promptly execute and deliver to each Grantor, at such Grantor’s sole cost and expense, any assignment or assignments as may be necessary to reassign to such Grantor any such Intellectual Property then-owned by the Collateral Agent; provided, after giving effect to such reassignment, the

 

27


  security interest granted pursuant to this Agreement, and all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in full force and effect.

 

  (b) Each Grantor recognizes that the Collateral Agent may deem it impracticable to effect a public sale of all or any part of the Pledged Shares or any other securities constituting Pledged Interests and that the Collateral Agent may, therefore, determine to make one or more private sales of any such securities to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to delay the sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act. Each Grantor further acknowledges and agrees that any offer to sell such securities which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such an offer may be so advertised without prior registration under the Securities Act) or (ii) made privately in the manner described above to not less than fifteen bona fide offerees shall be deemed to involve a “public disposition” for the purposes of Section 9-610(c) of the Code (or any successor or similar, applicable statutory provision) as then in effect in the State of New York, notwithstanding that such sale may not constitute a “public offering” under the Securities Act, and that the Collateral Agent may, in such event, bid for the purchase of such securities.

 

  (c) Any cash held by the Collateral Agent (or its agent or designee) as Collateral and all Cash Proceeds received by the Collateral Agent (or its agent or designee) in respect of any sale of or collection from, or other realization upon, all or any part of the Collateral may, in the discretion of the Collateral Agent, be held by the Collateral Agent (or its agent or designee) as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Collateral Agent pursuant to Section 10 hereof) in whole or in part by the Collateral Agent against, all or any part of the Secured Obligations in such order as the Collateral Agent shall elect, consistent with the provisions of the Financing Agreement. Any surplus of such cash or Cash Proceeds held by the Collateral Agent (or its agent or designee) and remaining after the date on which all of the Secured Obligations (other than unasserted contingent indemnification obligations) have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents, shall be paid over to whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct.

 

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  (d) In the event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which the Collateral Agent and the Lenders are legally entitled, the Grantors shall be jointly and severally liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Loan Document for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees, out-of-pocket costs and expenses of any attorneys employed by the Collateral Agent to collect such deficiency.

 

  (e) Each Grantor hereby acknowledges that if the Collateral Agent complies with any applicable requirements of law in connection with a disposition of the Collateral, such compliance will not adversely affect the commercial reasonableness of any sale or other disposition of the Collateral.

 

  (f) The Collateral Agent shall not be required to marshal any present or future collateral security (including, but not limited to, this Agreement and the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of the Collateral Agent’s rights hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that any Grantor lawfully may, such Grantor hereby agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement of the Collateral Agent’s rights under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.

SECTION 10. Indemnity and Expenses . This Agreement shall be deemed to be a Loan Document and shall otherwise be subject to all of the terms and conditions contained in Sections 12.04 and 12.16 of the Financing Agreement, mutatis mutandi .

SECTION 11. Notices, Etc. All notices and other communications provided for hereunder shall be given in accordance with the notice provision of the Financing Agreement.

 

  SECTION 12. Security Interest Absolute; Joint and Several Obligations .

 

  (a)

All rights of the Secured Parties, all Liens and all obligations of each of the Grantors hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Financing Agreement or any other Loan Document, (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Secured Obligations, or any

 

29


  other amendment or waiver of or consent to any departure from the Financing Agreement or any other Loan Document, (iii) any exchange or release of, or non-perfection of any Lien on any Collateral, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Secured Obligations, or (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any of the Grantors in respect of the Secured Obligations. All authorizations and agencies contained herein with respect to any of the Collateral are irrevocable and powers coupled with an interest until the Payment in Full of all Secured Obligations and the termination of the Financing Agreement.

 

  (b) Each Grantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and notice of the incurrence of any Obligation by any Borrower, (iii) notice of any actions taken by any Agent, any Lender, any Guarantor or any other Person under any Loan Document or any other agreement, document or instrument relating thereto, (iv) all other notices, demands and protests, and all other formalities of every kind in connection with the enforcement of the Obligations, the omission of or delay in which, but for the provisions of this subsection (b), might constitute grounds for relieving such Grantor of any such Grantor’s obligations hereunder and (v) any requirement that any Agent or any Lender protect, secure, perfect or insure any security interest or other lien on any property subject thereto or exhaust any right or take any action against any Grantor or any other Person or any collateral.

 

  (c) All of the obligations of the Grantors hereunder are joint and several. The Collateral Agent may, in its sole and absolute discretion, enforce the provisions hereof against any of the Grantors and shall not be required to proceed against all Grantors jointly or seek payment from the Grantors ratably. In addition, the Collateral Agent may, in its sole and absolute discretion, select the Collateral of any one or more of the Grantors for sale or application to the Secured Obligations, without regard to the ownership of such Collateral, and shall not be required to make such selection ratably from the Collateral owned by all of the Grantors. The release or discharge of any Grantor by the Collateral Agent shall not release or discharge any other Grantor from the obligations of such Person hereunder.

SECTION 13. Miscellaneous .

 

  (a) No amendment of any provision of this Agreement (including any Schedule attached hereto) shall be effective unless it is in writing and signed by each Grantor affected thereby and the Collateral Agent, and no waiver of any provision of this Agreement, and no consent to any departure by any Grantor therefrom, shall be effective unless it is in writing and signed by the Collateral Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

  (b)

No failure on the part of the Secured Parties to exercise, and no delay in

 

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  exercising, any 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 preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Secured Parties provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Secured Parties under any Loan Document against any party thereto are not conditional or contingent on any attempt by such Person to exercise any of its rights under any other Loan Document against such party or against any other Person, including but not limited to, any Grantor.

 

  (c) This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect, subject to paragraph (e) below, until the date on which all of the Secured Obligations have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents and (ii) be binding on each Grantor and all other Persons who become bound as debtor to this Agreement in accordance with Section 9-203(d) of the Code and their respective successors and assigns, and shall inure, together with all rights and remedies of the Secured Parties hereunder, to the benefit of the Secured Parties and their respective successors, transferees and assigns. Without limiting the generality of clause (ii) of the immediately preceding sentence, the Secured Parties may assign or otherwise transfer their respective rights and obligations under this Agreement and any other Loan Document to any other Person pursuant to the terms of the Financing Agreement, and such other Person shall thereupon become vested with all of the benefits in respect thereof granted to the Secured Parties herein or otherwise. Upon any such assignment or transfer, all references in this Agreement to any Secured Party shall mean the assignee of any such Secured Party. None of the rights or obligations of any Grantor hereunder may be assigned or otherwise transferred without the prior written consent of the Collateral Agent, and any such assignment or transfer shall be null and void.

 

  (d)

Upon the date on which all of the Secured Obligations (other than unasserted contingent indemnification obligations upon which no claim has been made) have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents, (i) subject to paragraph (e) below, this Agreement and the security interests and licenses created hereby shall automatically terminate and all rights to the Collateral shall revert to the Grantors and (ii) the Collateral Agent will, upon the Grantors’ request and at the Grantors’ expense, without any representation, warranty or recourse whatsoever, (A) return to the Grantors (or whosoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct) such of the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and (B) execute and deliver to the Grantors such documents as the Grantors shall reasonably request to evidence such termination. In the event that, within five Business Days following any such termination, the Collateral Agent shall fail to submit for recording in the

 

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  appropriate office appropriate UCC-3 termination statements as requested by one or more Grantors, each of the Grantors is hereby authorized by the Collateral Agent to file such termination statements in the name of and on behalf of the Collateral Agent as secured party.

 

  (e) This Agreement shall (i) remain in full force and effect and continue to be effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of any Grantor’s assets at any time prior to the date on which all of the Secured Obligations (other than unasserted contingent indemnification obligations upon which no claim has been made) have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents and (ii) continue to be effective or be reinstated, as the case may be, if at any time payment or performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

  (f) Upon the execution and delivery, or authentication, by any Person of a security agreement supplement in substantially the form of Exhibit C hereto (each a “ Security Agreement Supplement ”), (i) such Person shall be referred to as an “ Additional Grantor ” and shall be and become a Grantor, and each reference in this Agreement to “Grantor” shall also mean and be a reference to such Additional Grantor, and each reference in this Agreement and the other Loan Documents to “Collateral” shall also mean and be a reference to the Collateral of such Additional Grantor, and (ii) the supplemental Schedules I-VIII attached to each Security Agreement Supplement shall be incorporated into and become a part of and supplement Schedules I-VIII , respectively, hereto, and the Collateral Agent may attach such Schedules as supplements to such Schedules, and each reference to such Schedules shall mean and be a reference to such Schedules, as supplemented pursuant hereto.

 

  (g)

The security interests created hereby shall automatically terminate and be released with respect to any Collateral or any Grantor that is sold as part of or in connection with any sale permitted under the Financing Agreement or under any other Loan Document. With respect to any such termination the Collateral Agent shall, upon the reasonable request of the Grantors and at the Grantor’s expense, execute and deliver to the Grantors and record such documents as the Grantors shall reasonably request to evidence such termination (including, without limitation, appropriate UCC-3 amendments or termination statements), all without any representation, warranty or recourse

 

32


  whatsoever. If, within five Business Day after any request therefor by a Grantor, the Collateral Agent shall fail to submit for recording in the appropriate office a UCC-3 amendment or termination statement in respect of any Collateral that has been released as described in the first sentence of this clause (g), the relevant Grantor here hereby authorized to do so in the name and on behalf of the Collateral Agent as secured party.

 

  (h) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.

 

  (i) In addition to and without limitation of any of the foregoing, this Agreement shall be deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions contained in Sections 12.10 and 12.11 of the Financing Agreement, mutatis mutandi .

 

  (j) Each party hereunder irrevocably and unconditionally waives any right it may have to claim or recover in any legal action, suit or proceeding with respect to this Agreement any special, exemplary, punitive or consequential damages.

 

  (k) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

  (l) Section headings herein are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

  (m) This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which shall be deemed an original, but all of such counterparts taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

33


IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its officer thereunto duly authorized, as of the date first above written.

 

GRANTORS :

FUNKO ACQUISITION HOLDINGS, L.L.C.

By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary

FUNKO HOLDINGS LLC

By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary
FUNKO, LLC
By:  

s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary

Pledge and Security Agreement


SCHEDULE I

LEGAL NAMES; STATES OR JURISDICTIONS OF ORGANIZATION; TYPE OF

ORGANIZATION; & ORGANIZATIONAL IDENTIFICATION NUMBERS;

 

Company Name

   State of
Organization
   Type of Organization    Organizational I.D.

Funko Acquisition Holdings, L.L.C.

   Delaware    Limited Liability
Company
   5832371

Funko Holdings LLC

   Delaware    Limited Liability
Company
   5327798

Funko, LLC

   Washington    Limited Liability
Company
   602469782


SCHEDULE II

INTELLECTUAL PROPERTY AND LICENSES; TRADE NAMES


SCHEDULE III

LOCATIONS OF GRANTORS

Chief Places of Business and Chief Executive Offices

 

Company

Name

  

State of

Organization

  

Chief Place(s) of Business

  

Chief Executive Office/ Books and Records

Funko Acquisition Holdings, L.L.C.    Delaware    1133 Connecticut Ave NW #700, Washington, DC 20036    1133 Connecticut Ave NW #700, Washington, DC 20036
Funko Holdings LLC    Delaware    1202 Shuksan Way, Everett, Snohomish County Washington 98203    1202 Shuksan Way, Everett, Snohomish County Washington 98203
Funko, LLC    Washington    1202 Shuksan Way, Everett, Snohomish County Washington 98203   

1202 Shuksan Way, Everett, Snohomish County Washington 98203*

 

* Also contains Inventory, Equipment or other Goods.

 

Sched. III


SCHEDULE IV

DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS

 

Company

  

Bank or Broker

  

Address

  

Account No.

  

Account Type

Funko, LLC            
Funko, LLC            
Funko, LLC            

 

Sched. IV


SCHEDULE V

[Reserved]

 

Sched. VI


SCHEDULE VI

COMMERCIAL TORT CLAIMS

None.


SCHEDULE VII

PLEDGED DEBT

 

Grantor

  

Description

  

Principal Amount Outstanding

as of Closing

None.

 

Sched. VII


SCHEDULE VIII

PLEDGED SHARES

 

Grantor

  

Name of Pledged
Issuer

  

Number

of Shares

  

Percentage of
Outstanding
Membership

Interest

  

Class

  

Certificate

Number

Funko Acquisition Holdings, L.L.C.    Funko Holdings LLC    N/A    100%    N/A    N/A
Funko Holdings LLC    Funko, LLC    N/A    100%    N/A    N/A

 

Sched. VIII


EXHIBIT A

FORM OF PLEDGE AMENDMENT

This Pledge Amendment, dated [                    ]         , 20[    ], is delivered pursuant to Section 4 of the Pledge and Security Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may be attached to the Pledge and Security Agreement, dated October 30, 2015 as it may heretofore have been or hereafter may be amended, restated, supplemented, modified or otherwise changed from time to time (the “ Security Agreement ”) and that the promissory notes or shares listed on this Pledge Amendment shall be hereby pledged and assigned to the Collateral Agent and become part of the Pledged Interests referred to in such Pledge Agreement and shall secure all of the Secured Obligations referred to in such Security Agreement.

Pledged Debt

 

               Principal Amount

Grantor

  

Name of Maker

  

Description

  

Outstanding as of

        
        

Pledged Shares

 

Grantor

  

Name of

Pledged Issuer

  

Number of

Shares

  

Percentage of
Outstanding

Shares

  

Class

  

Certificate

Number

 

[GRANTOR]
By:  

 

  Name:
  Title:

CERBERUS BUSINESS FINANCE, LLC,

as the Collateral Agent

By:  

 

  Name:
  Title:

 

   Exh. A-1   


EXHIBIT B

GRANT OF A SECURITY INTEREST —[TRADEMARKS] [PATENTS] [COPYRIGHTS]

This [Trademark][Copyright][Patent] Security Agreement (this “[ Trademark][Copyright][Patent] Security Agreement ”) is made as of [                    ], 20    , by                      (“ Grantor ”), in favor of Cerberus Business Finance, LLC, in its capacity as collateral agent for the Secured Parties (together with its successors and assigns in such capacity, “ Grantee ”).

WHEREAS, Grantor owns [the trademarks and service marks listed on the attached Schedule A, which trademarks and service marks are registered or applied for in the United States Patent and Trademark Office (the “ Trademarks ”)] [the letter patents, design patents and utility patents listed on the attached Schedule A , which patents are issued or applied for in the United States Patent and Trademark Office (the “ Patents ”)] [the copyrights listed on the attached Schedule A , which copyrights are registered in the United States Copyright Office (the “ Copyrights ”)];

WHEREAS, the Grantor has entered into a Pledge and Security Agreement, dated October 30, 2015 (as amended, restated, supplemented, modified or otherwise changed from time to time, the “ Security Agreement ”), in favor of Agent, as the Collateral Agent for itself and the Lenders

WHEREAS, pursuant to the Security Agreement, the Grantor has granted to the Grantee for the benefit of the Secured Parties (each such term as defined in the Security Agreement), a continuing security interest in all [Trademarks, together with all goodwill associated therewith and symbolized thereby] [Patents] [Copyrights] and the applications and registrations thereof, and all proceeds thereof, including, without limitation, any and all causes of action arising out of or relating to any infringement thereof and any and rights to recover from past, present and future violations thereof (the “ IP Collateral ”), as collateral security for the payment, performance and observance of the Secured Obligations (as defined in the Security Agreement).

NOW, THEREFORE, as collateral security for the payment, performance and observance of all of the Secured Obligations, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby pledges and grants to the Grantee, for the benefit of the Secured Parties, a continuing security interest in the IP Collateral (other than, to the extent provided in the Security Agreement, any Excluded Property).

All capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement.

The Grantor does hereby further acknowledge and affirm that the rights and remedies of the Grantee with respect to the IP Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.

 

   Exh. B-1   


This [Trademark][Patent][Copyright] Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

[Remainder of page intentionally left blank; signature page follows.]

 

   2   


IN WITNESS WHEREOF, Grantor has caused this [Trademark][Copyright][Patent] Security Agreement to be duly executed by its officer thereunto duly authorized as of the date first set forth above.

 

[GRANTOR],

a [Delaware] [corporation],

as Grantor

By:  

 

  Name:
  Title:

 

   Exh. B-3   


SCHEDULE A TO GRANT OF A SECURITY INTEREST

[Trademark Registrations and Applications]

[Patents and Patent Applications]

[Copyright Registrations and Applications]

 

   Exh. B-4   


EXHIBIT C

FORM OF SECURITY AGREEMENT SUPPLEMENT

[Date of Security Agreement Supplement]

Cerberus Business Finance, LLC, as Collateral Agent

875 Third Avenue

New York, NY 10022

Ladies and Gentlemen:

Reference hereby is made to (i) the Financing Agreement, dated as of October 30, 2015 such agreement, as amended, restated, supplemented, modified or otherwise changed from time to time, including any replacement agreement therefor, being hereinafter referred to as the “ Financing Agreement ”) by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent” or the “Buyer”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “ Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”) and (ii) the Pledge and Security Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), made by the Grantors from time to time party thereto in favor of the Collateral Agent. Capitalized terms defined in the Financing Agreement or the Security Agreement and not otherwise defined herein are used herein as defined in the Financing Agreement or the Security Agreement.

SECTION 1. Grant of Security . The undersigned hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in, all of its right, title and interest in and to all of the Collateral (as defined in the Security Agreement) of the undersigned, whether now owned or hereafter acquired by the undersigned, wherever located and whether now or hereafter existing or arising, including, without limitation, the property and assets of the undersigned set forth on the attached supplemental schedules to the Schedules to the Security Agreement.

 

   Exh. C-1   


SECTION 2. Security for Obligations . The grant of a security interest in the Collateral by the undersigned under this Security Agreement Supplement and the Security Agreement secures the payment of all Secured Obligations of the undersigned now or hereafter existing under or in respect of the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, each of this Security Agreement Supplement and the Security Agreement secures the payment of all amounts that constitute part of the Secured Obligations and that would be owed by the undersigned to the Collateral Agent or any Secured Party under the Loan Documents but for the fact that such Secured Obligations are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving a Grantor.

SECTION 3. Supplements to Security Agreement Schedules . The undersigned has attached hereto supplemental Schedules I through VIII to Schedules I through VIII , respectively, to the Security Agreement, and the undersigned hereby certifies, as of the date first above written, that such supplemental Schedules have been prepared by the undersigned in substantially the form of the equivalent Schedules to the Security Agreement, and such supplemental Schedules include all of the information required to be scheduled to the Security Agreement and do not omit to state any information material thereto.

SECTION 4. Representations and Warranties . The undersigned hereby makes as of the date hereof each representation and warranty set forth in Section 5 of the Security Agreement (as supplemented by the attached supplemental Schedules) to the same extent as each other Grantor.

SECTION 5. Obligations Under the Security Agreement . The undersigned hereby agrees, as of the date first above written, to be bound as a Grantor by all of the terms and provisions of the Security Agreement to the same extent as each of the other Grantors. The undersigned further agrees, as of the date first above written, that each reference in the Security Agreement to an “Additional Grantor” or a “Grantor” shall also mean and be a reference to the undersigned.

SECTION 6. Governing Law . This Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 7. Loan Document . In addition to and without limitation of any of the foregoing, this Security Agreement Supplement shall be deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions contained in Sections 12.10 and 12.11 of the Financing Agreement, mutatis mutandi.

Very truly yours,

[NAME OF ADDITIONAL LOAN PARTY]

 

   Exh. C-2   


By:  

 

  Name:
  Title:

 

Acknowledged and Agreed:
CERBERUS BUSINESS FINANCE, LLC, as Collateral Agent
By:  

 

Name:  
Title:  

 

   Exh. C-3   

Exhibit 10.12

EXECUTION VERSION

SECURITY AGREEMENT SUPPLEMENT

June 28, 2017

Cerberus Business Finance, LLC, as Collateral Agent

875 Third Avenue

New York, NY 10022

Ladies and Gentlemen:

Reference hereby is made to (i) the Financing Agreement, dated as of October 30, 2015 such agreement, as amended, restated, supplemented, modified or otherwise changed from time to time, including any replacement agreement therefor, being hereinafter referred to as the “ Financing Agreement ”) by and among Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Ultimate Parent ” or the “ Buyer ”), as the initial borrower, and immediately upon consummation of the Funko Acquisition (as defined in the Financing Agreement) Funko Holdings LLC, a Delaware limited liability company (“ Parent ” or “ Funko Holdings ”) and each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with the Ultimate Parent, the Parent and each other Person that executes a Joinder Agreement and becomes a “Borrower” thereunder, each a “ Borrower ” and collectively, the “ Borrowers ”), each subsidiary of the Parent listed as a “ Guarantor ” on the signature pages thereto (together with each other Person that executes a Joinder Agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as therein defined), each a “ Guarantor ” and collectively, the “ Guarantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the  “Lenders ”), Cerberus Business Finance, LLC, a Delaware limited liability company (“ Cerberus ”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the  “Collateral Agent ”) and PNC Bank, National Association (“ PNC ”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the  “Administrative Agent ” and together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”) and (ii) the Pledge and Security Agreement, dated as of October 30, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), made by the Grantors from time to time party thereto in favor of the Collateral Agent. Capitalized terms defined in the Financing Agreement or the Security Agreement and not otherwise defined herein are used herein as defined in the Financing Agreement or the Security Agreement.

SECTION 1. Grant of Security . The undersigned hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in, all of its right, title and interest in and to all of the Collateral (as defined in the Security Agreement) of the undersigned, whether now owned or hereafter acquired by the undersigned, wherever located and whether now or hereafter existing or arising, including, without limitation, the property and assets of the undersigned set forth on the attached supplemental schedules to the Schedules to the Security Agreement.

SECTION 2. Security for Obligations . The grant of a security interest in the Collateral by the undersigned under this Security Agreement Supplement and the Security Agreement secures the payment of all Secured Obligations of the undersigned now or hereafter


existing under or in respect of the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, each of this Security Agreement Supplement and the Security Agreement secures the payment of all amounts that constitute part of the Secured Obligations and that would be owed by the undersigned to the Collateral Agent or any Secured Party under the Loan Documents but for the fact that such Secured Obligations are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving a Grantor.

SECTION 3. Supplements to Security Agreement Schedules . The undersigned has attached hereto supplemental Schedules I through VIII to Schedules I through VIII , respectively, to the Security Agreement, and the undersigned hereby certifies, as of the date first above written, that such supplemental Schedules have been prepared by the undersigned in substantially the form of the equivalent Schedules to the Security Agreement, and such supplemental Schedules include all of the information required to be scheduled to the Security Agreement and do not omit to state any information material thereto.

SECTION 4. Representations and Warranties . The undersigned hereby makes as of the date hereof each representation and warranty set forth in Section  5 of the Security Agreement (as supplemented by the attached supplemental Schedules) to the same extent as each other Grantor.

SECTION 5. Obligations Under the Security Agreement . The undersigned hereby agrees, as of the date first above written, to be bound as a Grantor by all of the terms and provisions of the Security Agreement to the same extent as each of the other Grantors. The undersigned further agrees, as of the date first above written, that each reference in the Security Agreement to an “Additional Grantor” or a “Grantor” shall also mean and be a reference to the undersigned.

SECTION 6. Governing Law . This Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 7. Loan Document . In addition to and without limitation of any of the foregoing, this Security Agreement Supplement shall be deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions contained in Sections 12.10 and 12.11 of the Financing Agreement, mutatis mutandi .

 

2


Very truly yours,
LOUNGEFLY, LLC
By:  

/s/ Russell Nickel

  Name: Russell Nickel
  Title: Chief Financial Officer and Secretary

Acknowledged and Agreed:

 

CERBERUS BUSINESS FINANCE, LLC,

as Collateral Agent

By:  

/s/ Eric Miller

Name:   Eric Miller
Title:   Executive Vice President

[Signature Page to Security Agreement Supplement]


SCHEDULE I

LEGAL NAMES; STATES OR JURISDICTIONS OF ORGANIZATION; TYPE OF

ORGANIZATION; & ORGANIZATIONAL IDENTIFICATION NUMBERS

 

Company Name

   State of
Organization
   Type of Organization    Organizational I.D.
Loungefly, LLC    California    Limited Liability
Company
   C2650857


SCHEDULE II

INTELLECTUAL PROPERTY AND LICENSES; TRADE NAMES


SCHEDULE III

LOCATIONS OF GRANTOR

Chief Places of Business and Chief Executive Offices

 

Company
Name

  

State of
Organization

  

Chief Place(s) of Business

  

Chief Executive Office/

Books and Records

Loungefly, LLC    California    20310 Plummer Street, Chatsworth, California 91311    20310 Plummer Street, Chatsworth, California 91311

 

Sched. III


SCHEDULE IV

DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS

 

Company

  

Bank or Broker

  

Address

  

Account No.

  

Account Type

Loungefly, LLC            

 

Sched. IV


SCHEDULE V

[Reserved]

 

Sched. VI


SCHEDULE VI

COMMERCIAL TORT CLAIMS

None.


SCHEDULE VII

PLEDGED DEBT

 

Grantor

  

Description

  

Principal Amount Outstanding as

of Closing

None.

     

SCHEDULE VIII

PLEDGED SHARES

 

Grantor

  

Name of Pledged
Issuer

  

Number of Shares

  

Percentage of
Outstanding
Membership
Interest

  

Class

  

Certificate

Number

None.

              

 

Sched. VIII

Exhibit 10.13

FUNKO ACQUISITION HOLDINGS, L.L.C.

2015 OPTION PLAN

ARTICLE I

GENERAL PROVISIONS

1. Purposes of the Plan . The purposes of this Plan are to attract and retain the best available personnel, to provide additional incentives to Employees and to promote the success of the Company’s business.

2. Definitions . The following definitions shall apply as used herein and in the individual Option Agreements except as defined otherwise in an individual Option Agreement. In the event a term is separately defined in an individual Option Agreement, such definition shall supersede the definition contained in this Paragraph 2.

(a) “ Administrator ” means the Board or any of the Committees appointed to administer the Plan.

(b) “ Applicable Laws ” means the legal requirements relating to the Plan and Options under applicable provisions of federal and state securities laws, the corporate laws of the State of Delaware and, to the extent other than State of Delaware, the corporate law of the state of the Company’s organization, the Code, the rules of any applicable stock exchange or national market system, and the rules of any non-U.S. jurisdiction applicable to Options granted to residents therein.

(c) “ Board ” means the Board of Directors of the Company as described in the LLC Agreement.

(d) “ Cause ” means, with respect to the termination by the Company or a Related Entity of the Grantee’s Continuous Service, that such termination is for “Cause” as such term (or word of like import) is expressly defined in a then-effective written agreement between the Grantee and the Company or such Related Entity, or in the absence of such then-effective written agreement and definition, is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act or failure to perform any act in bad faith and to the detriment of the Company or a Related Entity; (ii) dishonesty, intentional misconduct or material breach of any agreement with the Company or a Related Entity; or (iii) commission of’ a crime involving dishonesty, breach of trust, or physical or emotional harm to any person; provided, however, that with regard to any agreement that defines “Cause” on the occurrence of or in connection with a Company Transaction, such definition of “Cause” shall not apply until a Company Transaction actually occurs.

(e) “ Code ” means the Internal Revenue Code of 1986, as amended.

(f) “ Committee ” means any committee composed of members of the Board appointed by the Board to administer the Plan.


(g) “ Company ” means Funko Acquisition Holdings, L.L.C., a Delaware limited liability company, or any successor entity that adopts the Plan. Upon the Incorporation, all references in the Plan to the Company shall automatically be converted to the Corporate Successor.

(h) “ Company Transaction ” means any of the following transactions, provided, however, that (x) a Company Transaction shall not include the Incorporation, (y) the Administrator shall determine under parts (iv) and (v) whether multiple transactions are related, and its determination shall be final, binding and conclusive; and (z) the Company Transaction is consistent with the occurrence of a change in ownership of the Company, change in effective control of the Company, or change in the ownership of a substantial portion of the assets of the Company, as such terms are defined in Code Section 409A(a)(2)(A)(v), the regulations thereunder, and any other published interpretive authority, as issued or amended from time to time:

(i) a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Company is organized;

(ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company;

(iii) any reverse merger or series of related transactions culminating in a reverse merger (including, but not limited to, a tender offer followed by a reverse merger) in which the Company is the surviving entity but (A) the Units outstanding immediately prior to such merger are converted or exchanged by virtue of the merger into other property, whether in the form of securities, cash or otherwise, or (B) in which securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from those who held such securities immediately prior to such merger or the initial transaction culminating in such merger; or

(iv) an acquisition in a single or series of related transactions by any person or related group of persons (other than the Company, a Company-sponsored employee benefit plan or any of the Members who hold Units immediately prior to the effective date of the Plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities.

(i) “ Continuous Service ” means that the provision of services to the Company or a Related Entity in any capacity of Employee is not interrupted or terminated. In jurisdictions requiring notice in advance of an effective termination as an employee, Continuous Service shall be deemed terminated upon the actual cessation of providing services to the Company or a Related Entity notwithstanding any required notice period that must be fulfilled before a termination as an employee can be effective under Applicable Laws. A Grantee’s Continuous Service shall be deemed to have terminated either upon an actual termination of Continuous Service or upon the entity for which the Grantee provides services ceasing to be a Related Entity. Continuous Service shall not be considered interrupted in the case of (i) any approved leave of

 

- 2 -


absence, (ii) transfers among the Company, any Related Entity, or any successor, in any capacity of Employee, or (iii) any change in status as long as the individual remains in the Service of the Company or a Related Entity in any capacity of Employee (except as otherwise provided in the Option Agreement). An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave.

(j) “ Corporate Successor ” means the corporation which shall succeed to all or a substantial portion of the assets and liabilities of the Company upon the Incorporation.

(k) “ Disability ” shall have the meaning set forth in the long term disability policy of the Company or the Related Entity to which the Grantee provides services regardless of whether the Grantee is covered by such policy. If the Company or the Related Entity to which the Grantee provides service does not have a long-term disability plan in place, “Disability” means that a Grantee is unable to carry out the responsibilities and functions of the position held by the Grantee by reason of any medically determinable physical or mental impairment for a period of not less than ninety (90) consecutive days. A Grantee will not be considered to have incurred a Disability unless he or she furnishes proof of such impairment sufficient to satisfy the Administrator in its discretion.

(l) “ Employee ” means any person, including an Officer, who is in the employ of the Company or any Related Entity, subject to the control and direction of the Company or any Related Entity as to both the work to be performed and the manner and method of performance. In addition, Members who provide services to the Company and members of a Related Entity who provide services to such Related Entity shall be considered Employees.

(m) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(n) “ Fair Market Value ” means, as of any date, the value of the Units or Stock determined as follows:

(i) If the Stock is listed on one or more established stock exchanges or national market systems, including without limitation The Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on the principal exchange or system on which the Stock is listed (as determined by the Administrator) on the date of determination (or, if no closing sales price or closing bid was reported on that date, as applicable, on the last trading date such closing sales price or closing bid was reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(ii) If the Stock is regularly quoted on an automated quotation system (including the OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value shall be the closing sales price for such stock as quoted on such system or by such securities dealer on the date of determination, but if selling prices are not reported, the Fair Market Value of a share of Stock shall be the mean between the high bid and low asked prices for the Stock on the date of determination (or, if no such prices were reported on that date, on the last date such prices were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or

 

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(iii) In the absence of an established market for the Units or for the Stock of the type described in (i) and (ii), above, the Fair Market Value thereof shall be determined by the Board in good faith.

(o) “ Grantee ” means an Employee who receives an Option under the Plan.

(p) “ Immediate Family ” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Grantee’s household (other than a tenant or employee), a trust in which these persons (or the Grantee) have more than fifty percent (50%) of the beneficial interest, a foundation in which these persons (or the Grantee) control the management of assets, and any other entity in which these persons (or the Grantee) own more than fitly percent (50%) of the voting interests.

(q) “ Incorporation ” means the incorporation of the Company which shall be effected through the conversion (whether through a merger, acquisition, exchange of equity resulting in the Company becoming a wholly-owned subsidiary of a corporation, or other transaction resulting in a corporation succeeding to all of or a substantial portion of the assets and liabilities of the Company) of all the outstanding Units into shares of one or more series of Stock of the Corporate Successor as determined by the Board.

(r) “ LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of Funko Acquisition Holdings, L.L.C., effective as of the date hereof, together with any subsequent amendments or modifications thereto effected from time to time.

(s) “ Member ” means a member of the Company as described in the LLC Agreement.

(t) Net-Exercise means a procedure by which the Grantee will be issued a number of whole Units upon the exercise of an Option determined in accordance with the following formula:

N = X(A-B)/A, where

“N” = the number of Units to be issued to the Grantee upon exercise of the Option;

“X” = the total number of Units with respect to which the Grantee has elected to exercise the Option;

“A” = the Fair Market Value of a Unit determined on the exercise date; and

“B” = the exercise price per Unit (as defined in the Option Agreement)

(u) “ Officer ” means a person who is an officer of the Company or a Related Entity within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

(v) “ Option ” means a right or option granted under the Plan.

 

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(w) “ Option Agreement ” means the written agreement evidencing the grant of an Option executed by the Company and the Grantee, including any amendments thereto.

(x) “ Parent ” means any entity (other than the employer entity) in an unbroken chain of entities ending with the employer entity if, at the time of the granting of an Option, each of the entities other than the employer entity owns securities possessing 50% or more of the total combined voting power of all classes of securities in one of the other entities in such chain.

(y) “ Plan ” means this Option Plan.

(z) “ Registration Date ” means the first to occur of (i) the closing of the first sale to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended, of (A) the Stock or (B) the same class of securities of a successor corporation (or its Parent) issued pursuant to a Company Transaction in exchange for or in substitution of the Units or Stock; and (ii) in the event of a Company Transaction, the date of the consummation of the Company Transaction if the same class of securities of the successor corporation (or its Parent) issuable in such Company Transaction shall have been sold to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended, on or prior to the date of consummation of such Company Transaction.

(aa) “ Related Entity ” means any Parent or Subsidiary of the Company and any business, corporation, partnership, limited liability company or other entity in which the Company or a Parent or a Subsidiary of the Company holds a substantial ownership interest, directly or indirectly.

(bb) “ Rule 16b-3 ” means Rule 16b-3 promulgated under the Exchange Act or any successor thereto.

(cc) “ Share ” means a share of the Stock.

(dd) “ Stock ” means the class of preferred stock or common stock of the Corporate Successor into which the Units are converted upon Incorporation. In addition, “Stock” shall refer to any other class of preferred stock or common stock of the Corporate Successor into which Stock may be later converted.

(ee) “ Subsidiary ” means any entity (other than the employer entity) in an unbroken chain of entities beginning with the employer entity if, at the time of the granting of an Option, each of the entities other than the last entity in the unbroken chain owns securities possessing 50% or more of the total combined voting power of all classes of securities in one of the other entities in such chain.

(ff) “ Unit ” means, for the purposes of this Plan, a Class A Units as described in the LLC Agreement. References to Units shall be deemed to refer to Shares upon Incorporation.

 

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3. Units Subject to the Plan .

(a) Number of Units . Subject to the provisions this Paragraph 3, the number of Units which may be issued pursuant to all Options is 3,407.2722 Units.

(b) Issuance of Units . Any Units covered by an Option (or portion of an Option) which are forfeited, canceled or expire (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes of determining the maximum aggregate number of Units which may be issued under the Plan. Units subject to an Option that are exercised shall not be returned to the Plan and shall not become available for future issuance under the Plan.

(c) Incorporation . In the event of an Incorporation, the Units reserved for issuance under the Plan and subject to outstanding Options shall be converted into shares of Stock. The number of shares of Stock issuable under the Plan and under each outstanding Option immediately after the Incorporation shall be determined by multiplying the number of Units issuable under the Plan and under each outstanding Option respectively immediately prior to the Incorporation by the ratio in effect for the conversion or exchange of Units into shares of Stock in the Incorporation and rounded to the nearest whole Share. For purposes of rounding, (i) any fractional share greater than or equal to 0.50 shall be rounded up to the nearest whole share and any fractional share less than 0.50 shall be rounded down to the nearest whole share and (ii) any fraction of a cent greater than or equal to 50.0050 shall be rounded up to the nearest whole cent and any fraction of a cent less than 0.0050 shall be rounded down to the nearest whole cent. Upon the Incorporation, all references in the Plan to Units shall automatically be converted into references to the shares of Stock into which the Units are converted and all references to the Company shall automatically be converted into references to the Corporate Successor.

4. Administration of the Plan .

(a) Plan Administrator . The Board or a Committee designated by the Board shall administer the Plan. The Plan may be administered by different bodies with respect to Officers and Employees.

(b) Powers of the Administrator . Subject to Applicable Laws, the LLC Agreement and the provisions of the Plan (including any other powers given to the Administrator hereunder), and except as otherwise provided by the Board, the Administrator shall have the authority, in its discretion:

(i) to select the Employees to whom Options may be granted from time to time hereunder;

(ii) to determine whether and to what extent Options are granted hereunder;

(iii) to determine the number of Units or the amount of other consideration to be covered by each Option granted hereunder;

(iv) to approve forms of Option Agreements for use under the Plan;

 

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(v) to determine the terms and conditions of any Option granted hereunder;

(vi) to amend the terms of any outstanding Option granted under the Plan;

(vii) to construe and interpret the terms of the Plan and Options, including without limitation, any notice of Option or Option Agreement, granted pursuant to the Plan; and

(viii) to take such other action, not inconsistent with the terms of the Plan, as the Administrator deems appropriate.

Any decision made, or action taken, by the Administrator or in connection with this Plan shall be final, conclusive and binding on all persons having an interest in the Plan.

(c) Indemnification . In addition to such other rights of indemnification as they may have as Officers or Employees of the Company or a Related Entity, and any Officers or Employees of the Company or a Related Entity to whom authority to act for the Board, the Administrator or the Company is delegated shall be defended and indemnified by the Company to the extent permitted by law on an after-tax basis against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any Option granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by the Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim, investigation, action, suit or proceeding that such person is liable for gross negligence, had faith or intentional misconduct; provided, however, that within thirty (30) days after the institution of such claim, investigation, action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at the Company’s expense to defend the same.

5. Eligibility . Options may be granted to Employees. Options may be granted to such Employees who are residing in non-U.S. jurisdictions as the Administrator may determine from time to time.

ARTICLE II

OPTIONS

1. Option Agreement . Each Option shall be set forth in an Option Agreement, executed on behalf of the Company and by the Grantee. To the extent of any conflict between the Plan and any Option Agreement, the terms of such Option Agreement shall control.

2. Option Exercise Price . The exercise price of the Units covered by each Option granted under the Plan shall be determined in good faith by the Committee and shall be an amount not less than the Fair Market Value of these Units on the date of the grant of the Option.

 

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While each Option is intended to be exempt from Code Section 409A, neither the Company nor the Committee shall be liable to any Grantee for any tax consequences if an Option is found to be subject to that statute and not in compliance. Notwithstanding the foregoing, Fair Market Value shall be determined in accordance with applicable regulations under Code Section 409A and, where the Units are not publicly-traded, such valuation shall involve the reasonable application of a reasonable valuation method taking into account the relevant factors or, if elected by the Committee from time to time, by applying any valuation method presumed reasonable under those regulations.

3. Number of Units . Each Option Agreement shall state the number of Units to which it pertains.

4. Term of Option . Unless otherwise stated in the Option Agreement, each Option shall terminate and expire ten (10) years from the date of the grant thereof, but may be subject to earlier termination as herein provided.

5. Date of Exercise . Upon the authorization of the grant of an Option, or at any time thereafter, the Committee may prescribe the date or dates on which the Option becomes exercisable, and may provide that the Option rights become exercisable in installments over a period of years, and/or upon the attainment of stated goals. Unless the Committee otherwise provides in writing, the date or dates on which the Option becomes exercisable (and expires) shall be tolled during any unpaid leave of absence. It is expressly understood that Options hereunder shall, unless otherwise provided for in writing by the Committee, be granted in contemplation of, and earned by the Grantee through the completion of, future employment or service with the Company.

6. Payment of Exercise Price . Except as otherwise provided below, payment of the exercise price shall be made on the date of exercise as follows: (a) in cash, by check or in cash equivalent, (b) Net Exercise, (c) by such other consideration as may be approved by the Company from time to time to the extent permitted by Applicable Law, or (d) by any combination thereof.

7. Termination of Continuous Service .

(a) A Grantee who ceases to be an Employee for any reason other than death, Disability, or termination for Cause, may exercise any Option granted to such Grantee, to the extent that the right to purchase Units thereunder has become exercisable by the date of such termination, but only within three (3) months (or such other period of time as the Committee may determine) after such date, or, if earlier, within the originally prescribed term of the Option, and subject to the conditions that (i) no Option shall be exercisable after the expiration of the term of the Option and (ii) unless the Committee otherwise provides, no Option that has not become exercisable by the date of such termination shall at any time thereafter be or become exercisable. A Grantee’s employment or service shall not be deemed terminated by reason of a transfer to another employer or service recipient which is the Company or a Related Entity.

 

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(b) A Grantee who ceases to be an Employee for Cause shall, upon such termination, cease to have any right to exercise any Option. The determination of the Board or the Committee, in its discretion, as to the existence of Cause shall be conclusive and binding upon the Grantee and the Company.

(c) Except as the Board or Committee may otherwise expressly provide or determine, a Grantee who is absent from work with the Company because of temporary disability (any disability other than a permanent and total Disability), or who is on authorized leave of absence for any purpose permitted by the Company shall not, during the period of any such absence, be deemed, by virtue of such absence alone, to have terminated his or her employment or relationship with the Company.

(d) This Paragraph 7 shall control and fix the rights of a Grantee who ceases to be an Employee for any reason other than death, Disability, or termination for Cause, and who subsequently becomes disabled or dies. Nothing in Paragraphs 8 and 9 shall be applicable in any such case. However, in the event of such a subsequent Disability or death within the three (3) month period after the termination of Continuous Service or, if earlier, within the originally prescribed term of the Option, the Grantee or the Grantee’s estate or personal representative may exercise the Option: (i) in the event of Disability, within twelve (12) months after the date that the Grantee termination of Continuous Service as an Employee, and (ii) in the event of death, within twelve (12) months after the date of death of such Grantee.

8. Total and Permanent Disability .

(a) A Grantee whose Continuous Service as an Employee ceases by reason of Disability may exercise any Option granted to such Grantee to the extent that the right to purchase Units thereunder has become exercisable on or before the date such Grantee becomes disabled as determined by the Committee.

(b) A disabled Grantee, or his estate or personal representative, shall exercise such rights, if at all, only within a period of not more than the twelve (12) months after the date that the Grantee became disabled as determined by the Committee (notwithstanding that the Grantee might have been able to exercise the Option as to some or all of the Units on a later date if the Grantee had not become disabled) or, if earlier, within the originally prescribed term of the Option.

9. Death . In the event that a Grantee to whom an Option has been granted ceases to be an Employee by reason of such Grantee’s death, such Option, to the extent that the right is exercisable but not exercised on the date of death, may be exercised by the Grantee’s estate or representative, or by any beneficiary of the Grantee for purposes of this Plan, within the twelve (12) months after the date of death of such Grantee or, if earlier, within the originally prescribed term of the Option, notwithstanding that the decedent might have been able to exercise the Option as to some or all of the Units on a later date if the Grantee were alive and had continued to provide Continuous Service to the Company or of a Related Entity.

 

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10. Exercise of Options and Issue of Units . The exercise process shall be initiated by the Option holder giving written notice to the Company on a form approved by the Board. On the date specified in such written notice (which date may be extended by the Company in order to comply with any law or regulation which requires the Company to take any action with respect to the Units prior to the issuance thereof), the Company shall accept payment for the Units, and shall deliver to the person or persons exercising the Option in exchange therefor an appropriate certificate or certificates for fully paid non-assessable Units (or register such Units in such person’s name on the Company’s membership records, or both). In the event of any failure to pay for the number of Units specified in such written notice on the date set forth therein (or on the extended date as above provided), the right to exercise the Option shall terminate and be cancelled with respect to such number of Units, but shall continue in accordance with the Option Agreement with respect to the remaining Units covered by the Option and not yet acquired pursuant thereto.

11. Rights as a Member and Unit Holder . No Option holder shall have rights as a Member or holder of Units with respect to any Units covered by such Option except as to such Units as have been issued in the name of such person upon the due exercise of the Option, including payment and acceptance of the full exercise price.

12. Assignability and Transferability of Option . Unless otherwise permitted by the Code and by Rule 16b-3 of the Exchange Act, if applicable, and approved in advance by the Committee, an Option granted to a Grantee (i) shall not be transferable by the Grantee during his or her lifetime except to a family member on such terms and conditions as the Committee may set forth in the Option Agreement, and (ii) shall be exercisable, during the Grantee’s lifetime, only by such Grantee or, in the event of the Grantee’s incapacity, his guardian or legal representative. Except as otherwise permitted herein, such Option shall not be assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment, or similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of any Option or of any rights granted thereunder contrary to the provisions of this Paragraph 12, or the levy of any attachment or similar process upon an Option or such rights, shall be null and void. An Option may be transferred effective upon or after the death of the Grantee (i) to the Grantee’s designated surviving beneficiary under this Plan, or (ii) to any other beneficiary in accordance with the applicable laws of descent and distribution.

13. Company Repurchase Rights . Any Option Agreement may confer on the Company the right to repurchase outstanding Options (and Units acquired by exercise of an Option) held by a Grantee upon the termination of the Grantee’s Continuous Service with the Company (or any and all Related Entities), upon the Grantee’s breach of any applicable restrictive covenant, or upon any other event or condition as set forth in the Option Agreement. Unless otherwise specified in the Option Agreement the Company shall have not less than ninety (90) days after the triggering event in which to give notice of intent to exercise or assign its repurchase rights with respect to all or part of the outstanding Option. The repurchase shall take place at the Company’s principal executive office within sixty (60) days after such notice. The repurchase price for Units acquired by exercise of an Option shall be the Unit Fair Market Value. The repurchase price for outstanding vested but unexercised Options shall be the Fair Market Value of the underlying Unit reduced by the exercise

 

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price for the Option as set forth in the Option Agreement. Portions of an outstanding Option may be cancelled in lieu of being repurchased, due to termination of employment for Cause, breach of a restrictive covenant or other negative circumstance. Fair Market Value shall be determined, for purposes of repurchase rights, by the Board in its sole discretion, but shall not be less than the Company’s book value for the Units involved absent clear evidence to the contrary. Payment may be made by a promissory note or in cash, at the Company’s discretion. The provisions of this Section 13 are supplemental to, and not in lieu of, any rights to repurchase Units or any other security held by Company pursuant to the LLC Agreement.

14. Effect of Public Offering . Notwithstanding the foregoing, the Company shall cease to have rights pursuant to Paragraph 13 following the completion of an initial public offering of the Units or other Company securities.

15. Adjustments Upon a Company Transaction .

(a) If the outstanding Units of the Company are changed into or exchanged for a different number or kind of units or other securities of the Company or of another corporation or entity by reason of a Company Transaction, the Company (or any successor thereto) shall make adjustments to outstanding Options (including, by way of example and not by way of limitation, the grant of substitute options under the Plan or under the plan of such other corporation or other entity) as it may determine to be appropriate under the circumstances, and, in addition, appropriate adjustments shall be made in the number and kind of units (or other securities) and in the exercise price per unit (or share) subject to outstanding options under the Plan or under the plan of such successor corporation or entity. No such adjustment shall be made which shall, within the meaning of Section 424 of the Code, constitute such a modification, extension, or renewal of an option as to cause the adjustment to be considered as the grant of a new option.

(b) Notwithstanding anything herein to the contrary, the Company may, in its sole discretion, accelerate the timing of the exercise provisions of any Option in the event of a Company Transaction. Alternatively, the Company may, in its sole discretion, cancel any or all Options upon a Company Transaction and provide for the payment to Grantee in cash or other property in an amount equal in value to the difference between the exercise price and the Fair Market Value of a Unit, as determined in good faith by the Committee, at the close of business on the date of such event, multiplied by the number of Units subject to the Option so canceled.

(c) Upon a business combination by the Company with any corporation or other entity through the adoption of a plan of merger or consolidation or a unit exchange or through the purchase of all or substantially all of the equity or assets of such other corporation or entity, the Board may, in its sole discretion, grant Options pursuant hereto to all or any persons who, on the effective date of such transaction, hold outstanding options to purchase securities of such other corporation or entity and who, on and after the effective date of such transaction, will become Employees. The number of Units subject to such substitute Options shall be determined in accordance with the terms of the transaction by which the business combination is effected. Upon the grant of substitute Options pursuant hereto, the options to purchase securities of such other corporation or entity for which such Options are substituted shall be canceled immediately.

 

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16. Dissolution or Liquidation of the Company . Upon the dissolution or liquidation of the Company other than in connection with a Company Transaction to which Paragraph 15 is applicable, all Options granted hereunder shall terminate and become null and void; provided, however, that if the rights of a Grantee under the Options have not otherwise terminated and expired, the Grantee shall have the right immediately prior to such dissolution or liquidation to exercise any Option granted hereunder to the extent that the right to purchase Units thereunder has become exercisable as of the date immediately prior to such dissolution or liquidation.

ARTICLE III

MISCELLANEOUS

1. Taxes . Except as otherwise provided by the Board or Committee,

(a) the Company shall have the power and right to deduct or withhold, or require a Grantee to remit to the Company, an amount sufficient to satisfy the minimum federal, state, and local taxes required by law to be withheld with respect to any grant, exercise, or payment made under or as a result of this Plan; and

(b) in the case of any taxable event hereunder, a Grantee may elect, subject to the approval in advance by the Committee, to satisfy the withholding requirement, if any, in whole or in part, by having the Company withhold Units that would otherwise be transferred to the Grantee having a Fair Market Value, on the date the tax is to be determined, equal to at least the minimum marginal tax that could be imposed on the transaction. All elections shall be made in writing and signed by the Grantee.

2. Changes in Units . Subject to any required action by the Members of the Company, the number of Units covered by each outstanding Option, and the number of Units which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan, as well as any other terms that the Board determines require adjustment shall be proportionately adjusted for (i) any increase or decrease in the number of issued Units resulting from a Unit split, reverse Unit split, Unit distribution, combination or reclassification of the Units or similar event affecting the Units, (ii) any other increase or decrease in the number of issued Units effected without receipt of consideration by the Company, or (iii) as the Board may determine in its discretion, any other transaction with respect to Units including a merger, consolidation, acquisition of property or Units, separation (including a spin-off or other distribution of Units or property), reorganization, liquidation (whether partial or complete), capital contribution, or any similar transaction; provided, however that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Board and its determination shall be final, binding and conclusive. Except as the Board determines, no issuance by the Company of units of any class, or securities convertible into units of any class, or distribution to the Members, shall affect, and no adjustment by reason hereof shall be made with respect to, the number or price of Units subject to an Option.

 

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3. Purchase for Investment . Unless the Units to be issued upon the particular exercise of an Option shall have been effectively registered under the Securities Act of 1933, as now in force or hereafter amended (“Securities Act”), the Company shall be under no obligation to issue the Units covered by such exercise unless and until the following conditions have been fulfilled. In accordance with the direction of the Committee, the persons who exercise such Option shall warrant to the Company that, at the time of such exercise, such persons are acquiring their Units for investment and not with a view to, or for sale in connection with, the distribution of any such Units, and shall make such other representations, warranties, acknowledgments and/or affirmations, if any, as the Committee may require. In such event, the persons acquiring such Units shall be bound by the provisions of a legend as determined by the Company which shall be endorsed upon the certificate(s) evidencing their Units issued pursuant to such exercise.

4. Amendment, Suspension or Termination of the Plan . The Board may at any time amend, suspend or terminate the Plan. To the extent necessary to comply with Applicable Laws and the LLC Agreement, the Company shall obtain Member approval of any Plan amendment in such a manner and to such a degree as required. No Option may be granted during any suspension of the Plan or after termination of the Plan.

5. No Effect on Terms of Employment/Consulting Relationship . The Plan shall not confer upon any Grantee any right with respect to the Grantee’s Continuous Service, nor shall it interfere in any way with his or her right or the right of the Company or any Related Entity to terminate the Grantee’s Continuous Service at any time, with or without Cause, and with or without notice. The ability of the Company or any Related Entity to terminate the employment of a Grantee who is employed at will is in no way affected by its determination that the Grantee’s Continuous Service has been terminated for Cause for the purposes of this Plan.

6. No Effect on Retirement and Other Benefit Plans . Except as specifically provided in a retirement or other benefit plan of the Company or a Related Entity, Options shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Related Entity, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement Income Security Act of 1974, as amended.

7. Unfunded Obligation . Grantees shall have the status of general unsecured creditors of the Company. Any amounts payable to Grantees pursuant to the Plan shall be unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974, as amended. Neither the Company nor any Related Entity shall be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Grantee account shall not create or constitute a trust or fiduciary relationship between the Administrator, the Company or any Related Entity and a Grantee, or otherwise create any vested or beneficial interest in any Grantee or the Grantee’s creditors in any assets of the Company or a Related Entity. The Grantees shall have no claim against the Company or any Related Entity for any changes in the value of any assets that may be invested or reinvested by the Company with respect to the Plan.

 

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8. Mitigation of Excise Tax . Unless otherwise provided for in the Option Agreement or in any other agreement between the Company (or a Related Entity Affiliate) and the Grantee, if any payment or right accruing under this Plan (without the application of this Paragraph 8), either alone or together with other payments or rights accruing to the Grantee the Company or a Related Entity would constitute a “parachute payment” (as defined in Section 280G of the Code and regulations thereunder), such payment or right shall be reduced to the largest amount or greatest right that will result in no portion of the amount payable or right accruing under the Plan being subject to an excise tax under Section 4999 of the Code or being disallowed as a deduction under Section 280G of the Code. The determination of whether any reduction in the rights or payments under this Plan is to apply shall be made by the Company. The Grantee shall cooperate in good faith with the Company in making such determination and providing any necessary information for this purpose. The Company, Board, Committee, and any members thereof individually, shall have no obligation or liability to any Grantee for any income or excise taxes arising under the Code, including Sections 4999 and 409A, in the event any Options granted under this Plan are found to violate any Code Sections, including 280G or 409A.

9. Savings Clause . This Plan is intended to comply in all respects with Applicable Law and regulations, including, (i) with respect to those Grantee who are officers for purposes of Section 16 of the Exchange Act, Rule 16b-3 of the Securities and Exchange Commission, if applicable, (ii) Section 402 of the Sarbanes-Oxley Act, and (iii) with respect to executive officers, Code Section 162(m). In case any one or more provisions of this Plan shall be held invalid, illegal, or unenforceable in any respect under Applicable Law and regulation (including Rule 16b-3 and Code Section 162(m)), the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the invalid, illegal, or unenforceable provision shall be deemed null and void; however, to the extent permitted by law, any provision that could be deemed null and void shall first be construed, interpreted, or revised retroactively to permit this Plan to be construed in compliance with all Applicable Law (including Rule 16b-3 and Code Section 162(m)) so as to foster the intent of this Plan. Notwithstanding anything herein to the contrary, with respect to Grantee who are officers for purposes of Section 16 of the Exchange Act, to the extent that Section 16 of the Exchange Act is applicable to the Company, no grant of an Option to purchase Units shall permit unrestricted ownership of Units by the Grantee for at least six (6) months from the date of the grant of such Option, unless the Board determines that the grant of such Option to purchase Units otherwise satisfies the then current Rule 16b-3 requirements.

10. Foreign Jurisdictions . To the extent the Committee determines that the restrictions imposed by or upon the Plan preclude the achievement of the material purposes of the Plan in jurisdictions outside the U.S., the Committee in its discretion may modify those restrictions as it determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the U.S.

11. LLC Agreement and Other Requirements . Notwithstanding anything herein to the contrary, as a condition to the receipt of Units pursuant to an Option under the Plan, to the extent required by the Committee, the Grantee shall execute and deliver a joinder to the Company’s LLC Agreement agreeing to be bound by the LLC Agreement in the capacity of a Member or such other documentation which shall set forth (in addition to, or in lieu of, the terms set forth in the Plan) certain restrictions on transferability of the Units acquired upon exercise,

 

- 14 -


and such other terms as the Board or Committee shall from time to time establish. Such Unit holder’s agreement or other documentation shall apply to the Units acquired under the Plan and covered by such Unit holder’s agreement or other documentation. The Company may require, as a condition of exercise, the Grantee to become a party to any other existing Unit holder agreement (or other agreement).

12. Lock-Up Period . As a condition to the grant of an Option, if requested by the Company and the lead underwriter of any Registration Date, Grantee shall irrevocably agree not to sell, contract to sell, grant any option to purchase, transfer the economic risk ownership in, make any short sale of, pledge or otherwise transfer or dispose of, any interest in any Units or any securities convertible into, derivative of, or exchangeable or exercisable for, or any other rights to purchase or acquire Company securities (except securities included in such public offering or acquired on the public market after such offering) during such period of time following the effective date of a registration statement of the Company filed under the Securities Act that such lead underwriter shall specify. The Grantee shall further agree to sign such documents as may be required by such lead underwriter to effect the foregoing and agree that the Company may impose stop-transfer instructions with respect to Units acquired pursuant to an Option until the end of such period as provided for in this Paragraph 12.

13. Member Approval . To the extent required by the LLC Agreement, the Plan shall be subject to approval by the Members of the Company.

14. Construction . Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

15. Governing Law . This Plan, the rights and obligations of the Company and Grantee, and any claims or disputes relating hereto or thereto, shall be governed by and construed in accordance with the laws of the State of Delaware (excluding the choice of law rules thereof).

 

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Exhibit 10.14

AMENDMENT NO. 1 TO

FUNKO ACQUISITION HOLDINGS, L.L.C.

2015 OPTION PLAN

April 27, 2017

RECITALS

WHEREAS , Funko Acquisition Holdings, L.L.C., a Delaware limited liability company (the “ Company ”) entered into that certain 2015 Option Plan (the “ Plan ”), as adopted by the Board of Directors (the “ Board ”) on October 30, 2015;

WHEREAS , the Board has authority to amend the Plan pursuant to Section 4 of Article III of the Plan, subject to the restrictions set forth therein; and

WHEREAS , the Board has adopted this Amendment (this “ Amendment ”) to the Plan, as set forth below, pursuant to a Written Consent of the Board, dated as of even date herewith.

AGREEMENTS

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants set forth herein, the undersigned hereby certifies that the Plan is amended as follows:

1. Section 3(a) of Article I of the Plan is hereby amended and restated in its entirety as follows:

“(a) Number of Units . Subject to the provisions of this Paragraph 3, the number of Units which may be issued pursuant to all Options is 3,449.7059 Units.”

2. Except as set forth in this Amendment, the Plan shall be unaffected hereby and shall remain in full force and effect.

3. From and after the execution of this Amendment, any reference to the Plan shall be deemed to be a reference to the Plan as amended by this Amendment.

IN WITNESS WHEREOF , the undersigned has executed this Amendment to the Plan effective the date first set forth above.

 

FUNKO ACQUISITION HOLDINGS, L.L.C.
By:   /s/ Russell Nickel
Name:   Russell Nickel
Title:   Chief Financial Officer

Exhibit 10.15

THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.

FUNKO ACQUISITION HOLDINGS, L.L.C.

OPTION AGREEMENT

 

NAME

   GRANT
DATE
     EXPIRATION
DATE
     NUMBER OF
UNITS
     EXERCISE
PRICE PER UNIT
 

___________

     _______        _______, ____ 1        _______      $ _______  

The Grantee named above has been granted an Option to purchase Units of Funko Acquisition Holdings, L.L.C. (the “Company”) on the terms and subject to the conditions described below, in accordance with the Funko Acquisition Holdings, L.L.C. Option Plan (the “Plan”). Capitalized terms that are used but not defined herein shall have the respective meanings accorded to such terms in the Plan. The Company and Grantee agree as follows:

 

1. Nature and Size of Option Grant .

The Company grants to Grantee the right to purchase, in the aggregate, the number of Units shown above at the Exercise Price Per Unit shown above. The Option is not intended to be treated as an “incentive stock option” within the meaning of Section 422 of the Code. The granting of the Option shall impose no obligation on Grantee to exercise such Option.

The parties agree that the Exercise Price Per Unit is not less than the Fair Market Value of a Unit of the Company as of the date of grant of this Option, as such Fair Market Value and date of grant would be determined under Code Section 409A so as to exempt this Option from that statute. The Company shall not be responsible, or liable to Grantee, for any tax and other consequences if the Option is determined to be subject to Code Section 409A and not in compliance with that statute.

 

2. Limitations on Exercise of Option .

Except as provided in the Plan or in this Option Agreement, and unless the Board establishes otherwise, Grantee is entitled to purchase, in whole or in part, not more than the vested portion of the total number of Units shown above, determined according to the vesting schedule shown below:

 

Date

   Percent of
Option
Exercisable
 

[Closing Date]

     [100 ]% 

 

1   To be the expiration date of the existing Option Agreements prior to the rollover.


3. Termination of Service .

The Option shall terminate immediately upon Grantee’s termination of Continuous Service to the extent that it is then unvested and shall be exercisable after the Grantee’s termination of Continuous Service to the extent it is then vested only during the applicable time period as determined below and thereafter shall terminate.

(a) Disability . If Grantee’s Continuous Service terminates because of his or her Disability, the Option, to the extent unexercised and exercisable for vested Units on the date on which the Grantee’s Continuous Service terminated, may be exercised by the Grantee (or the Grantee’s guardian or legal representative) at any time prior to the expiration of twelve (12) months after the date on which Grantee’s Continuous Service terminated, but in any event no later than the Expiration Date.

(b) Death . If the Grantee’s Continuous Service terminates because of the death of Grantee, the Option, to the extent unexercised and exercisable for vested Units on the date on which Grantee’s Continuous Service terminated, may be exercised by Grantee’s legal representative or other person who acquired the right to exercise the Option by reason of the Grantee’s death at any time prior to the expiration of twelve (12) months after the date on which the Grantee’s Continuous Service terminated, but in any event no later than the Expiration Date. The Grantee’s Continuous Service shall be deemed to have terminated on account of death if the Grantee dies within three (3) months after the Grantee’s termination of Continuous Service.

(c) Termination for Cause . Notwithstanding any other provision of this Option Agreement, if the Grantee’s Continuous Service is terminated for Cause, the entire Option (both vested and unvested portions) shall terminate and cease to be exercisable immediately upon such termination of Continuous Service.

(d) Other Termination of Service . If Grantee’s Continuous Service terminates for any reason, except Disability, death or Cause, the Option, to the extent unexercised and exercisable for vested Units on the date on which Grantee’s Continuous Service terminated, may be exercised by Grantee at any time prior to the expiration of three (3) months after the date on which the Grantee’s Continuous Service terminated, but in any event no later than the Expiration Date.

(e) Extension if Exercise Prevented by Law . Notwithstanding the foregoing other than termination of Service for Cause, if the exercise of the Option within the applicable time periods set forth in this Section is prevented by Applicable Laws, the Option shall remain exercisable until the later of (a) thirty (30) days after the date such exercise first would no longer be prevented by such Applicable Laws or (b) the end of the applicable time period under this Section, but in any event no later than the Expiration Date. Nothing contained herein shall limit Company’s rights to terminate the employment or engagement of Grantee at any time for any reason.

 

4. Method of Exercising Option .

Grantee may exercise the Option in accordance with the terms hereof by providing to Company a written notice (the “Exercise Notice”) in the form attached hereto as Exhibit A, specifying the number of vested Units to be purchased and the purchase date, which shall be not less than five (5) nor more than ten (10) days after giving the Exercise Notice unless otherwise agreed to by the Company. On the purchase date, Grantee shall provide to the Company: (i) payment in full of the Exercise Price Per Unit for the Units being acquired through the methods permitted by the Plan (except in the event of a Net Exercise); (ii) execution of a joinder to the Company’s LLC Agreement in the form specified therein; and (iii) any other matters (including income tax withholding arrangements) required in accordance with this Option Agreement and the Plan. This Option will be considered exercised with respect to the number of Units Grantee desires to purchase on the date that Company receives all of the foregoing.


Grantee shall not acquire any rights or privileges as a Unit holder or Member of the Company for any Units issuable upon the exercise of this Option until such Units have been duly issued by the Company. The Company shall have the right to delay the issue or delivery of any Units to be delivered hereunder until (i) the completion of such registration or qualification of such Units under federal or state law, ruling or regulation as Company deems to be necessary or advisable; (ii) completion of tax withholding or payment arrangements satisfactory to the Company, in accordance with Section 9 below; (iii) receipt from Grantee of such documents and information as Company deems necessary or appropriate in connection with such registration or qualification or the issuance of Units hereunder; and (iv) execution and delivery by Grantee of a written joinder to the Company’s LLC Agreement. In the event of Grantee’s death, the Option may be exercised by the representative, administrator or other representative of Grantee’s estate, or the person to whom this Option shall pass by will or beneficiary designation. Any certificate or other evidence of Unit ownership following exercise of this Option may be marked with an appropriate legend giving notice of any transferability, repurchase rights, restrictions and conditions imposed by law, by the Company’s LLC Agreement or by any other agreement among the members of the Company.

 

5. Prohibition Against Transfer, Pledge and Attachment .

This Option, and the rights and privileges conferred by it, is personal to Grantee and may not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise), and during Grantee’s lifetime shall be exercisable only by Grantee. Grantee may transfer this Option, and the rights and privileges conferred by it, upon Grantee’s death, either by will or under the laws of descent and distribution, or by beneficiary designation made in such form and subject to such limitation as may from time to time be acceptable to the Committee and delivered to and accepted by the Committee. All such persons shall be subject to all of the terms and conditions of this Agreement to the same extent as would Grantee if still alive. This Option, and the rights and privileges conferred by it, may not be subjected to execution, attachment or similar process.

 

6. Repurchase of Acquired Units .

The Company has the right to repurchase outstanding Options (and Units acquired by exercise of an Option) held by Grantee upon termination of the Grantee’s Continuous Service with the Company for any reason. The Company shall have ninety (90) days after the termination of the Grantee’s Continuous Status to give notice of intent to exercise or assign its repurchase rights with respect to all or part of the outstanding Option. The repurchase shall take place at the Company’s principal executive office within sixty (60) days after such notice. The repurchase price for Units acquired by exercise of an Option shall be the Unit Fair Market Value. The repurchase price for outstanding vested but unexercised Options shall be the Fair Market Value of the underlying Unit reduced by the Exercise Price for the Option as set forth in the Option Agreement. Portions of an outstanding Option may be cancelled in lieu of being repurchased, due to termination of employment for Cause, breach of a restrictive covenant or other negative circumstance. Fair Market Value shall be determined, for purposes of repurchase rights, by the Board in its sole discretion, but shall not be less than the Company’s book value for the Units involved absent clear evidence to the contrary. Payment may be made by a promissory note or in cash, at the Company’s discretion. The provisions of this Section 6 are supplemental to, and not in lieu of, any rights to repurchase Units or any other security held by Company pursuant to the LLC Agreement.

Example: Grantee has an Option to purchase 1,000 Units. Grantee terminates service 36 months after the grant date. As of date of Grantee’s termination of Continuous Service to the Company, Grantee had exercised the Option to acquire 750 of the 1,000 Units (because 75% became


exercisable after 36 months). Grantee may therefore be required at the Company’s election to resell to the Company the 750 Acquired Units and receive payment equal to the Fair Market Value attributable to those Acquired Units. The remaining 250 Units that had not yet vested will be cancelled and forfeited on the date of the termination of Continuous Service because the Option expires.

 

7. Notices.

Any notice to be given to Company under the terms of this Option Agreement shall be addressed to the attention of the Company’s Board, at its principal place of business, and any notice to be given to Grantee may be sent to Grantee’s address as it appears in the payroll records of the Company, or at such other addresses as either party may designate in writing to the other.

 

8. Taxes .

(a) The Grantee shall, no later than the date of exercising the Option pay to the Company, make arrangements satisfactory to the Board for payment of, any federal, state or local taxes of any kind required by law to be withheld with respect to the Acquired Units, and the Company shall, to the extent permitted by law, have the right to deduct from any payment of any kind, including from Grantee’s payroll, otherwise due to Grantee any federal, state or local taxes of any kind required by law to be withheld with respect to the Acquired Units.

(b) Tax consequences on the Grantee (including without limitation federal, state, local and foreign income tax consequences) with respect to the Units (including without limitation the grant, vesting and/or forfeiture thereof) are the sole responsibility of the Grantee. The Grantee shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters.

 

9. Miscellaneous .

(a) Rights as an Employee . If Grantee is an Employee, Grantee understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between Company and the Grantee, Grantee’s employment is “at will” and is for no specified term. Nothing in this Option Agreement shall confer upon the Grantee any right to Continuous Service of the Company or interfere in any way with any right of the Company to terminate the Grantee’s Continuous Service as an Employee at any time.

(b) No Limit on Other Compensation Arrangements . Nothing contained in this Option Agreement shall preclude the Company from adopting or continuing in effect other or additional compensation arrangements, and such arrangements may be either generally applicable or applicable only in specific cases.

(c) Severability . If any provision of this Option Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify this Option Agreement or the grant of an Option under any Applicable Law, such provision shall be construed or deemed amended to conform to Applicable Law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of this Option Agreement and the grant of the Option hereunder, such provision shall be stricken as to such jurisdiction and the remainder of this Option Agreement and the Option shall remain in full force and effect).

(d) No Trust or Fund Created . Other than as set forth in the Plan, neither this Option Agreement nor the grant of the Option shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and the Grantee or any other person. To the extent that the Grantee or any other person acquires a right to receive payments from the Company pursuant to this Option Agreement, such right shall be no greater than the right of any unsecured general creditor of the Company.


(e) Governing Law . This Option Agreement, the rights and obligations of the Company and Grantee, and any claims or disputes relating hereto or thereto, shall be governed by and construed in accordance with the laws of the State of Delaware (excluding the choice of law rules thereof).

(f) Interpretation . The Grantee accepts the Option subject to all the terms and provisions of this Option Agreement and the terms and conditions of the Plan.

(g) Headings . Headings are given to the paragraphs and subparagraphs of this Option Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Option Agreement or any provision thereof.

(h) Complete Agreement . Except as otherwise provided for herein, this Option Agreement and those agreements and documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. The terms of this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Grantee.

[Signature page follows]


IN WITNESS WHEREOF, the Company and Grantee have executed this Option Agreement as of the grant date shown above.

 

FUNKO ACQUISITION HOLDINGS, L.L.C.
By:    
Name:    
Title:    
GRANTEE:
 
Name:    


[Provision for Community Property Jurisdiction]

CONSENT

I, the undersigned spouse of                                                   hereby acknowledge that I have read the foregoing Option Agreement and that I understand its contents. I am aware that the Option Agreement provides for the repurchase of my spouse’s Units under certain circumstances and imposes other restrictions on the transfer of such Units. I agree that my spouse’s interest in the Units is subject to this Option Agreement and any interest I may have in such Units will be irrevocably bound by this Option Agreement and further that my community property interest, if any, will be similarly bound by this Option Agreement.

I am aware that the legal, financial and other matters contained in this Option Agreement are complex and I am free to seek advice with respect thereto from independent counsel. I have either sought such advice or determined after carefully reviewing this Option Agreement that I will waive such right.

Date:                             

 

           
  Witness       Spouse


[Provision for Separate Property Jurisdiction]

CONFIRMATION

I, the undersigned spouse of                                                   hereby acknowledge that I have read the foregoing Option Agreement and that I understand its contents. I am aware that the Option Agreement provides for the repurchase of my spouse’s Units under certain circumstances and imposes other restrictions on the transfer of such Units. I hereby acknowledge and confirm that such Units are the sole and separate property of my spouse, and I hereby disclaim any interest in same.

I am aware that the legal, financial and other matters contained in this Option Agreement are complex and I am free to seek advice with respect thereto from independent counsel. I have either sought such advice or determined after carefully reviewing this Option Agreement that I will waive such right.

Date:                             

 

           
  Witness       Spouse


Exhibit A

NOTICE OF EXERCISE

PLEASE TAKE NOTICE that, pursuant to the Option Agreement, with a Grant Date of                      (the “ Option ”), between Funko Acquisition Holdings, L.L.C. (the “ Company ”) and                      (the “ Grantee ”), the Grantee hereby ELECTS TO EXERCISE the Option of the Grantee to purchase Units of the Company as follows:

 

Number of Units to be purchased:

   

Exercise Price per Unit:

  $                 

Total Purchase Price:

  $                             

Date of Purchase:

   

On the Date of Purchase, Grantee shall deliver to the Company: (i) a check payable in immediately available funds to the Company in the amount of the Total Purchase Price or such other method of payment of the Total Purchase Price as is in accordance with the Plan and Option (including Net Exercise if approved by the Company), (ii) a signed joinder to the Company’s LLC Agreement, and (iii) such other materials as required for proper exercise of the Option.

Grantee Representations : As a condition of the exercise memorialized in this notice, the Grantee represents and warrants to the Company as follows:

 

  (a) I understand and acknowledge that this exercise of my Option is subject to all of the terms and conditions of the Plan, the Option Agreement and the Company’s LLC Agreement, specifically including (i) the restrictions imposed by the LLC Agreement on any transfer of Units purchased by me and (ii) the provisions of the Plan giving the Company a right to repurchase the Units if I have a termination of Continuous Service, as defined in the Plan. I further understand that any certificate evidencing the Units I am acquiring will be imprinted with a legend along the lines of the following:

THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE UNITS REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE LLC AGREEMENT OF FUNKO HOLDINGS LLC, A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY BY ANY PERSON WITH A LEGITIMATE INTEREST THEREIN.

 

  (b) I have been furnished a current copy of the LLC Agreement. I understand and acknowledge that I will have no rights as a Member of the Company with respect to this acquisition of Units until (i) if I am not already an owner of Units in the Company, I have exercised a counterpart signature page to the LLC Agreement and (ii) the Units to be purchased by me have been recorded on the Company’s official membership records as having been issued or transferred to me pursuant to my exercise of my Option.

 

  (c) I understand and agree that the Company may require me to pay to the Company or make arrangements for payment of amounts equal to taxes required to be withheld by the Company attributable to my exercise of my Option. I acknowledge and agree that I am liable and responsible, and that the Company is not liable or responsible in any way, for any and all tax consequences to me relating to the exercise of my Option.

 

  (d) I am sufficiently aware of the Company’s business affairs and financial condition, and the Company has furnished to me all financial and other information relating to the Company as I have deemed necessary to make an informed decision to exercise my Option and purchase the Units.


  (e) I am purchasing the Units for my own account for investment purposes only, and not with a view to, or for sale in connection with, a distribution of any of the Units.

 

  (f) I understand and acknowledge that the exercise of my right to purchase the Units, and my later transfer of any of the Units (to the extent permitted under the LLC Agreement), is expressly conditioned upon compliance with all applicable federal securities laws and all applicable state securities laws; and I agree to cooperate with the Company to ensure such compliance.

 

  (g) I have reviewed and considered, and understand the significance and the reasons for my being provided with, the summaries of federal securities law requirements and restrictions set forth below in this Exercise Notice; and acknowledge that I have had sufficient opportunity to review and become familiar with the underlying securities law provisions referenced in such summaries of securities law requirements and restrictions and as may be applicable to my purchase of the Units.

Securities Law Requirements and Restrictions .

 

  (a) The Units have not been registered under the Securities Act of 1933 (“Securities Act”), in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of investment intent expressed by purchaser.

 

  (b) The Units must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from registration is otherwise available. Moreover, the Company is under no obligation to register the Units. In addition, any certificate evidencing the Units will be imprinted with a legend which prohibits the transfer of the Units unless they are registered or such registration is not required in the opinion of counsel for the Company, along the lines of the following:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

Dated:                         

 

 
Printed name:     
Social Security No. or FEIN:    

Exhibit 10.18

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement” ) made and entered into as of October 30, 2015 (the “ Effective Date ”), by and between BRIAN MARIOTTI , an individual residing at                                                       (“ Executive ”), and FUNKO, LLC , a Delaware limited liability company (the “ Company ”).

W I T N E S S E T H:

WHEREAS Executive and the Company have entered into an Employment Agreement dated May ____, 2013 pursuant to which Executive was to be employed by the Company as its Chief Executive Officer;

WHEREAS, Executive and the Company now desire to amend the terms of their original agreement;

NOW THEREFORE , in consideration of the premises and of the covenants and agreements hereinafter set forth, the adequacy and receipt of which is hereby acknowledged, the Company and the Executive hereby agreed as follows:

 

1. NATURE OF EMPLOYMENT RELATIONSHIP.

The Company hereby employs Executive as the Company’s Chief Executive Officer, and Executive hereby accepts such employment, on the terms and subject to the conditions set forth in this Agreement. Executive’s employment with the Company shall be at-will, terminable by either Executive or the Company with or without cause and with or without advance notice, subject to the payment provisions set forth in Sections 6 through 11 herein.

 

2. SERVICES TO BE RENDERED.

 

  2.1 Services to the Company . The Executive shall serve the Company faithfully, diligently and to the best of his ability. The Executive shall devote all of his business time, energies and skill to his duties hereunder and to the business and affairs of the Company; provided that the Executive may devote reasonable time to community and civic activities.

 

  2.2 Duties . The principal duties of the Executive shall be to serve as Chief Executive Officer of the Company and, in such capacity, to render such managerial, administrative and other services as normally are associated with, and incident to, such a position, and to render such other services as are consistent with his position and office as the Chief Executive Officer of the Company may from time to time require. The Executive shall report directly to the Manager of the Company (the “Manager” ).

 

1


3. COMPENSATION.

In consideration of the performance by the Executive of his duties and obligations hereunder, the Company shall pay to the Executive, and the Executive agrees to accept, as full compensation, the compensation set forth in this Agreement.

 

  3.1 Salary . The Company agrees to pay the Executive during his employment hereunder a salary at the rate of $600,000 per annum (the “Base Compensation” ). The Base Compensation shall be payable in accordance with the Company’s customary payroll practices. During the Executive’s employment hereunder, the Base Compensation shall be reviewed on an annual basis by the Manager.

 

  3.2 Bonus . In addition to the Base Compensation, the Executive shall be eligible to receive an annual bonus payment (the “Bonus Payment” ) with respect to each fiscal year during the Executive’s employment hereunder, commencing with fiscal year 2016. The Bonus Payment for fiscal year 2016 shall be as set forth on Exhibit A, and thereafter, shall be set by the Board for each fiscal year thereafter. Any Bonus Payment shall be paid as soon as practicable following delivery of the Company’s audited financial statements for the applicable fiscal year, but in no event later than December 31 of the calendar year following the applicable fiscal year. Except as otherwise set forth in this Agreement, Executive must be employed on the last day of the fiscal year to be eligible to receive a Bonus Payment.

 

4. BENEFITS.

 

  4.1 Benefit Plans . During his employment hereunder, the Executive shall be entitled to participate in, or receive, benefits and other perquisites on a basis at least equivalent to that enjoyed generally by other employees of the Company.

 

  4.2 Paid Time Off . During his employment hereunder, the Executive shall be entitled to vacation of 15 business days during each calendar year, adjusted pro rata for any partial calendar year during his employment hereunder. Such vacation may be taken at such times as is reasonably consistent with proper performance by the Executive of his duties and responsibilities hereunder as determined by the Manager in its reasonable judgment. The Executive shall also be entitled to all paid holidays given by the Company to employees generally.

 

5. EXPENSES.

The Company shall reimburse the Executive for reasonable out-of-pocket expenses properly incurred by him on behalf of and directly for the benefit of the Company in the performance of his duties hereunder and in accordance with policies of the Company set by the Manager; provided that proper written vouchers are submitted to the Company by the Executive evidencing such expenses and the purposes for which the same were incurred.

 

2


6. PAYMENTS ON DEATH OR DISABILITY.

 

  6.1 Death . In the event of the death of the Executive while employed hereunder, the Executive’s employment shall terminate on the date of the Executive’s death and the designated beneficiaries, or if no such beneficiaries shall have been designated by the Executive, the personal representative, of the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and benefits described in Section 4 (“Benefits” ) through the date of the Executive’s death; (b) the Bonus Payment for the fiscal year in which the Executive’s death occurs (assuming achievement of any applicable Performance Objectives), multiplied by a fraction, the numerator of which is the number of days from the first day of such fiscal year until the date of the Executive’s death and the denominator of which is 365, paid on or within thirty (30) days of Executive’s death; and (c) reimbursement for all unreimbursed expenses incurred through the date of the Executive’s death that are reimbursable pursuant to Section 5 hereof. The Executive’s designated beneficiaries or personal representatives shall accept the payments provided for in this Section 6.1 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

  6.2 Disability . If, during the Executive’s employment hereunder, the Executive shall be unable to perform substantially his work duties by reason of a physical or mental disability or infirmity for a period of three (3) consecutive months or a period of six (6) months during any twelve (12) month period, or at such earlier time as the Executive submits satisfactory medical evidence that he has a physical or mental disability or infirmity which will prevent him from returning to the performance of his work duties for six (6) months or longer; the Company may terminate the Executive’s employment hereunder by sending written notice of such termination to the Executive (at any time after the expiration date of such three (3) or six (6) month period or the submission of such satisfactory medical evidence). In the event of termination under this Section 6.2, the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and Benefits through the date of termination, provided, however, that Executive’s Base Compensation may be offset by the amount of any disability pay to which he is entitled; (b) the Bonus Payment for the fiscal year in which the termination occurs (assuming achievement of any applicable Performance Objectives), multiplied by a fraction the numerator of which is the number of days from the first day of such fiscal year until the date of termination and the denominator of which is 365, paid on or within thirty (30) days of Executive’s termination due to disability; and (c) reimbursement for all unreimbursed expenses incurred through the date of termination that are reimbursable pursuant to Section 5 hereof. The Executive shall accept the payments provided for in this Section 6.2 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

7. TERMINATION OF EMPLOYMENT BY THE COMPANY FOR CAUSE.

 

  7.1 Right to Terminate for Cause . The Company shall have the right to terminate the employment of the Executive for “Cause” upon any one of the following events:

 

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  (a) The Executive’s commission of any act or omission that involves theft, fraud, embezzlement, or a felony;

 

  (b) The Executive’s conviction of, or the entry of a plea of guilty or nolo contendere to, a crime involving moral turpitude or other crime which the Manager reasonably determines (i) may bring the Company into public disrepute or disgrace, or (ii) may cause material injury to the customer relations, operations or the business prospects of the Company;

 

  (c) The Executive’s material abuse of alcohol or material use of controlled drugs (other than in accordance with a physician’s prescription) which is reasonably determined by the Manager to have an adverse effect on the Company or reputation of the Company;

 

  (d) The Executive’s commission of any act or omission that constitutes financial or other material dishonesty against the Company or creates a conflict of interest with the Company;

 

  (e) A willful and intentional act by Executive that is, in the reasonable determination of the Company, materially injurious to the Company or any affiliate of the Company, financially or otherwise,

 

  (f) The Executive’s breach of fiduciary duty to the Company;

 

  (g) The Executive’s material breach of a written agreement between the Executive and the Company or any of its affiliates;

 

  (h) The Executive’s repeated dereliction of duty to the Company; or

 

  (i) The Executive’s refusal or failure to follow the lawful directives of the Manager or such other person as shall from time to time be designated by the Manager.

 

  7.2 Notice of Termination . In the event the Company elects to terminate the employment of the Executive for Cause as set forth above in Section 7.1, the Company shall give the Executive written notice of such termination which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated. In the event that the basis for termination invoked is Section 7.1(g), 7.1(h) or 7.1(i), the Company shall provide a reasonable period of not less than ten (10) days for the Executive to cure the noticed basis for termination, which period shall be established by the Manager; provided, however, that such cure period shall be provided only if the noticed basis for the termination for Cause is capable of being cured as determined by the Manager in its reasonable discretion. If the Executive timely cures the noticed basis for termination, there shall be no termination. Notwithstanding anything to the contrary contained in this Agreement, the Executive shall have the right to cure as described above a maximum of two (2) times, after which the Executive shall have no further cure rights.

 

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  7.3 Payments Following Termination for Cause . If the Company so terminates the employment of the Executive for Cause, the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and Benefits through the date of such termination, and (b) reimbursement for all unreimbursed expenses incurred through the date of termination that are reimbursable pursuant to Section 5 hereof. The Executive shall accept the payments provided for in this Section 7.3 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

8. TERMINATION OF EMPLOYMENT BY THE COMPANY WITHOUT CAUSE.

 

  8.1 Right to Terminate without Cause . Notwithstanding anything in this Agreement to the contrary, the Company may terminate the Executive’s employment hereunder at any time without Cause.

 

  8.2 Payments Following Termination without Cause . If, at any time, the Company terminates the Executive’s employment hereunder without Cause, including by providing a written notice of termination under Section 3 above, then the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and Benefits through the date of termination; (b) payment of COBRA premiums, if Executive timely elects and maintains COBRA coverage, to the same extent premiums for the same coverage would be paid by the Company had Executive remained employed, for a period of twelve (12) months after the date of termination; (c) the Bonus Payment for the fiscal year in which the termination occurs (assuming achievement of any applicable Performance Objectives), multiplied by a fraction the numerator of which is the number of days from the first day of such fiscal year until the date of termination and the denominator of which is 365, paid in a lump sum within sixty (60) days of Executive’s termination of employment; (d) reimbursement for all unreimbursed expenses incurred through the date of termination that are reimbursable pursuant to Section 5 hereof; and (e) severance pay from the date of termination for a period of twelve (12) months (the “Severance Period” ), in an amount equal to the Base Compensation at the rate in effect immediately prior to the date of termination, which severance pay shall commence on the first payroll period following the sixtieth day following Executive’s termination of employment and which shall be payable during the Severance Period in accordance with the Company’s customary payroll practices. Payment of the amounts set forth in parts (b), (c) and (e) above are contingent on Executive’s execution of a form of release of claims provided by the Company on or within forty-five days of Executive’s termination of employment and the expiration of any revocation periods applicable to the release having expired on or within sixty (60) days following Executive’s termination of employment. The Executive shall accept the payments provided for in this Section 8.2 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

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9. TERMINATION OF EMPLOYMENT BY EXECUTIVE FOR GOOD REASON.

 

  9.1 Right to Terminate for Good Reason . The Executive may terminate his employment hereunder at any time with “Good Reason” (as hereinafter defined); provided, however, that he shall first give the Company written notice of his intention to terminate pursuant to this Section 9.1 within ninety (90) days after the event triggering “Good Reason” which states the reasons therefore and the Company shall have fifteen (15) days after receiving such written notice to remedy the situation, if possible. For purposes hereof, “Good Reason” shall mean the occurrence or existence of any of the following with respect to the Executive: (a) the Executive’s duties or responsibilities are materially diminished or the Executive is assigned duties that are demeaning or are otherwise materially inconsistent with the duties then currently performed by the Executive, provided, however, that “Good Reason” shall not be deemed to exist if the Executive is reassigned to a position of like stature with an equivalent scope and responsibilities (whether or not such position involves a change of title); or (b) the Executive’s Base Compensation is materially reduced from the annual rate then currently in effect or (c) without a corresponding relative reduction in all employees’ benefits at the Company, the Executive’s Benefits are reduced materially in the aggregate from those then currently in effect.

 

  9.2

Payments Following Termination for Good Reason . If the Executive terminates his employment for Good Reason pursuant to Section 9.1, then the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and Benefits through the date of termination; (b) payment of COBRA premiums, if Executive timely elects and maintains COBRA coverage, to the same extent premiums for the same coverage would be paid by the Company had Executive remained employed, for a period of twelve (12) months after the date of termination; (c) the Bonus Payment for the fiscal year in which the termination occurs (assuming achievement of any applicable Performance Objectives), multiplied by a fraction the numerator of which is the number of days from the first day of such fiscal year until the date of termination and the denominator of which is 365, paid in a lump sum within sixty (60) days of Executive’s termination of employment; (d) reimbursement for all unreimbursed expenses incurred through the date of termination that are reimbursable pursuant to Section 5 hereof; and (e) severance pay during the Severance Period, in an amount equal to the Base Compensation at the rate in effect immediately prior to the date of termination (without giving effect to any reduction in Base Compensation constituting a basis for termination for Good Reason), which severance pay shall commence on the first payroll period following the sixtieth day following Executive’s termination of employment and payable during the Severance Period in accordance with the Company’s customary payroll practices. Payment of the amounts set forth in parts (b), (c) and (e) above are contingent on Executive’s execution of a form of release of claims provided by the Company on

 

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  or within forty-five days of Executive’s termination of employment and the expiration of any revocation periods applicable to the release having expired on or within sixty (60) days following Executive’s termination of employment.    The Executive shall accept the payments provided for in this Section 9.2 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

10. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE WITHOUT GOOD REASON.

 

  10.1 Right to Terminate without Good Reason . Notwithstanding anything in this Agreement to the contrary, the Executive may terminate his employment hereunder at any time without Good Reason upon written notice to the Company.

 

  10.2 Payments Following Termination by the Executive without Good Reason . If the Executive terminates his employment without Good Reason, then the Executive shall be entitled to receive: (a) any accrued and unpaid Base Compensation and Benefits through the date of termination, and (b) reimbursement for all unreimbursed expenses incurred through the date of termination that are reimbursable pursuant to Section 5 hereof. The Executive shall accept the payments provided for in this Section 10.2 in full discharge and release of the Company of and from any other obligations under this Agreement.

 

11. PUT RIGHT; CALL RIGHT.

 

  11.1 Executive’s Rights . Subject to Section 11.2, in the event the Executive’s employment is terminated by the Company without Cause (pursuant to Section 8) or by the Executive for Good Reason (pursuant to Section 9), then the Executive shall have the right to sell to the Company (which obligation may be assigned to Funko Acquisition Holdings, L.L.C. (“ Holdings ”)), and the Company shall have the obligation to purchase 50% of the Class A Units of Holdings (“ Class  A Units ”) that were issued to the Executive pursuant to the terms of that certain Securities Purchase Agreement, dated as of October 9, 2015, between Holdings, the Executive and the other parties thereto (the “ Purchase Agreement ”) at the lower of (i) $1,000 per Class A Unit or (ii) a price per Class A Unit equal to fair market value (as determined pursuant to Section 11.3 below) (the “ Fair Value ”) of each such Class A Unit (the “ Put Right ”). The Executive must exercise the Put Right within ninety (90) days of the date of termination of Executive’s employment. The closing of the repurchase pursuant to the exercise of such Put Right shall take place not later than ten (10) days following the date on which the Fair Value of Class A Units has been determined.

 

  11.2 Company’s Rights.

 

  (a)

In the event the Executive’s employment is terminated by the Company without Cause (pursuant to Section 8) or by the Executive for Good Reason (pursuant to Section 9), then Company (which right may be

 

7


  assigned to Holdings) shall have the right to purchase from the Executive, and the Executive shall have the obligation to sell to the Company, 50% of the Class A Units that were issued pursuant to the terms of the Purchase Agreement at a price per Class A Unit equal to the greater of (i) $1,000 per Class A Unit or (ii) Fair Value (the “ Call Right ”).

 

  (b) The Company must exercise the Call Right within ninety (90) days of the date of termination of Executive’s employment. The closing of the sale pursuant to the exercise of such Call Right shall take place not later than ninety (90) days following Company’s notice to the Executive of its exercise of the Call Right; provided, such date may be extended to determine the Fair Value for each Class A Unit.

 

  11.3 Determination of Fair Value . The repurchase price payable by the Company upon exercise of the Put Right or the Call Right shall be equal to the fair market value of the purchased Class A Units as determined in accordance with this Section 11.3.

 

  (a) In the event that (x) the Company desires to exercise the Call Right or (y) the Executive has informed the Company of its desire to exercise the Put Right, the Company shall provide the Executive with a notice (a “ Repurchase Notice ”) relating to such exercise no later than ten (10) business days prior to the date on which the repurchase of Class A Units is scheduled to take place. The Repurchase Notice shall, for the avoidance of doubt, include the number of Class A Units to be repurchased and the Fair Value of such Class A Units as determined in accordance with the Amended and Restated Limited Liability Company Agreement of Holdings, dated as of the date hereof, by and among Holdings, the Executive and the other parties thereto (the “ LLC Agreement ”).

 

  (b) If the Executive has an objection to the Fair Value as determined by the Board, the Executive shall deliver to the Company a statement setting forth his objection (an “ Objection Statement ”). If an Objection Statement is not delivered to the Company within fifteen (15) business days after delivery of the Repurchase Notice, the Fair Value as determined by the Board and reflected in the Repurchase Notice shall be final and binding on the Company and the Executive.

 

  (c)

In the event that the Executive delivers an Objection Statement, the Executive and the Company shall negotiate in good faith to resolve such dispute. If the Executive and the Company are unable to agree on the Fair Value within two (2) business days, the Company shall engage an investment bank or valuation firm with relevant experience to determine the Fair Value of the Class A Units at issue reasonably acceptable to the Company and the Executive; provided , however , that if the Executive and the Company are unable to agree on an investment bank or valuation firm within three (3) business days, the Company and the Member shall each

 

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  engage an investment bank (neither of which shall have had a material business relationship with the Company in the twelve (12) month period prior to the date of such selection) and the two selected investment banks shall select a third investment bank (which shall not have had a material business relationship with the Company, the ACON Investor (as defined in the LLC Agreement) or any of their respective Affiliates in the twelve (12) month period prior to the date of such selection) to serve as the investment bank for purposes of this Section 11.3 (the investment bank selected in accordance with this Section 11.3, the “ Valuation Expert ”). The Valuation Expert shall determine the Fair Value of the Class A Units at issue based upon the rights, priorities, returns and preferences applicable to such Class A Units. The Fair Value, as determined by the Valuation Expert, shall be final and binding on the Company and the Executive. The Executive and the Company shall use their respective commercially reasonable efforts to cause the Valuation Expert to notify them in writing of its determination of the Fair Value of the Class A Units at issue as soon as practicable.

 

  (d) If the Fair Value determined by Valuation Expert is equal to or less than 107.5% of the Fair Value determined by the Board and reflected in the Repurchase Notice, then the Executive shall pay all the costs, expenses and fees of the Valuation Expert; it being understood that the Company shall have the right to offset such amounts from the amounts payable to the Executive for the Class A Units being repurchased. If the Fair Value determined by the Valuation Expert is greater than 107.5% of the value determined by the Board and reflected in the Repurchase Notice, then the Company shall pay all costs, expenses and fees of the Valuation Expert.

 

  (e) The Executive hereby acknowledges that this Section 11.3 in no way modifies Section 6.10 of the LLC Agreement, including with respect to (i) forfeiture of vested Units (as defined in the LLC Agreement) that were issued as Profits Interests (as defined in the LLC Agreement); (ii) the call right set forth in Section 6.10(b) of the LLC Agreement with respect any securities issued to Executive other than the Class A Units, and (iii) the call right set forth in Section 6.10(b) of the LLC Agreement with respect to any vested Units or securities if the Executive is terminated for Cause.

 

  11.4 Repurchase Payments .

 

  (a) Subject to Section 11.4(b), the Company shall pay to the Executive in cash the full amount of the payment due pursuant to Section 11.1 or Section 11.2, as applicable.

 

  (b)

(i)Notwithstanding Section 11.4(a), the Company may, in it is sole discretion, pay the full amount of the payment due pursuant to Section 11.1 or Section 11.2, as applicable, in the form of a promissory note with a maturity of no more than five years bearing

 

9


  interest at the rate of 4% per annum (the “ Note ”) if (x) the Company or Holdings, as applicable, is prohibited from making a payment in cash by applicable law or by any debt instruments or agreements, including any amendment, renewal, extension, substitution, refinancing, replacement or other modification thereof (the “ Financing Documents ”) entered into by the Company or Holdings, as applicable, (y) a default has occurred under any Financing Document and is continuing, or (z) the making of a payment in cash would, or in the opinion of the Board of Directors of Holdings (the “ Board ”) in good faith might, result in an event of default under any Financing Document or create a condition which would, or in the opinion of the Board might, with notice or lapse of time or both, result in such an event of default.

 

  (ii) The Note shall be in a form satisfactory to the Company’s or Holdings’ lender, as applicable, and the Executive shall execute and deliver any instruments reasonably required by the Company’s or Holdings’ lender, as applicable, including any subordination agreement.

 

  (iii) The Company shall not be required to make a payment on the Note if the Board determines that:

 

  (A) Payment on the Note would render Holdings or any subsidiary of Holdings unable to meet its obligations in the ordinary course of business taking into account any pending or proposed transactions, capital expenditures or other budgeted cash outlays by Holdings or any subsidiary of Holdings, including any proposed acquisition of any other entity by Holdings or any subsidiary of Holdings or materially hinder the working capital needs of Holdings or any subsidiary of Holdings; or

 

  (B) Payment on the Note would constitute a breach of, default, or event of default under, or is otherwise prohibited by, the terms of any loan agreement or other agreement or instrument to which Holdings or any subsidiary of Holdings are a party.

The events described in Section 11.4(b)(ii)(A) and Section 11.4(b)(ii)  (B) above each constitute a “ Repurchase Disability ”. In the event of a Repurchase Disability, the Company or Holdings, as applicable, shall notify the Executive in writing and make the payment as soon as practicable after the Repurchase Disability terminates.

 

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12. NO CONFLICTING AGREEMENTS.

The Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would in any way restrict or prohibit him from entering into this Agreement or performing in accordance with the terms and conditions of this Agreement.

 

13. CONFIDENTIAL INFORMATION, TRADE SECRETS, AND INVENTIONS

 

  13.1 Promise to Maintain Confidentiality . Executive shall at all times, both during his employment with the Company and thereafter, hold in the strictest and total confidence all Confidential Information obtained by Executive while employed by the Company. Executive will at no time, without prior written authorization by the Company, disclose, assign, transfer, convey, communicate or use for the benefit of any person or entity other than the Company any Confidential Information, nor shall Executive permit any other person or entity to use Confidential Information in competition with the Company.

 

  13.2

Confidential Information . As used herein, the term “Confidential Information” shall mean all trademarks, trademark registrations, service marks (including applications for any of the foregoing), all agreements, whether written or oral, providing for the grant of any right to use a trademark, all service names, trade names, trade dress, logos and other business identifiers and the goodwill associated therewith; all copyrights, copyright registrations, applications for copyright registrations, all agreements, whether written or oral, granting any right under copyrights; all patents and patent information, applications and rights; all agreements, whether written or oral, providing for the grant of any right to make, use, sell, offer for sale or import any invention covered by a patent; all software, source code and object code; all Trade Secrets, knowledge, data, know how, technology, processes, Inventions, information pertaining to research, development, techniques, engineering, purchasing, marketing, selling, accounting, licensing, technical and other processes, records and specifications, products, equipment, devices, models, prototypes, computer hardware, computer programs, flow charts, program code, software libraries, databases, formulae, compositions, discoveries, techniques, procedures; business information (such as – but not limited to – the Company’s business practices, operational methods, future plans, leases, contracts, business plans, suppliers, contacts and referral sources, pending business transactions, customer information, such as – but not limited to – past, existing or prospective customers’ names, addresses or backgrounds, customer specifications and requirements, needs, prices that particular or various customers are charged or pay for services, proposals or agreements with customers, status of customers’ accounts, or other information about actual or prospective customers; and customer trade secrets, such as – but not limited to – proprietary information of the Company’s customers provided to the Company for the sole and exclusive purpose of permitting the Company to market or provide products or services to such customers or prospective customers; financial information, such as – but not limited to – the Company’s earning, sales, assets, debts, prices, pricing structure, margins, cost systems, volume/quantities of purchases or sales, or other financial data); marketing information (such as – but not limited to – prior, ongoing or

 

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  proposed marketing programs, presentations or agreements by or on behalf of the Company, pricing information, prior or existing contract terms, marketing tests and/or results of marketing efforts); personnel information (such as – but not limited to – employees’ personal or medical histories, compensation, employee incentive programs or other terms of employment, actual or proposed promotions, hirings, resignations, terminations or reasons therefore, training methods, or other personnel information); and all information of a proprietary nature relating to the business and assets of the Company. Confidential Information shall also include confidential and proprietary information of customers and other third parties received by the Company. Information may be deemed Confidential Information regardless of its source, and all information designated or treated as Confidential Information by the Company shall conclusively be deemed Confidential Information for all purposes.

 

  13.3 Trade Secrets . As used herein, the term “Trade Secret” shall mean information, including but not limited to, technical or nontechnical data, a formula, pattern, compilation, program, device, method, technique or process, that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

  13.4 Inventions . As used herein, the term “Invention” shall mean all ideas, discoveries, developments, improvements, innovations, technology, computer programs, software, products and methods, systems or plans whether or not shown or described in writing or reduced to practice or use, and whether or not entitled to the protection of applicable patent, trademark, copyright or similar laws, relating in any manner to any of the Company’s present or future products, services, manufacturing or research.

 

  13.5 Return of Confidential Information . Upon the termination of Executive’s employment with the Company or at any other time that the Company may request; Executive shall deliver promptly to the Company all originals and all copies (including photocopies, facsimiles and computer or other means of electronic storage whether now known or hereafter discovered) of all manuals, letters, notes, notebooks, reports, computer programs and flow charts, and similar items, memoranda, lists of clients and suppliers, and all other materials and copies thereof relating in any way to Confidential Information obtained by Executive while employed by the Company or the business of the Company. Upon delivering such information, Executive will not make or retain any copies of the foregoing and will so represent to the Company. Furthermore, upon termination of Executive’s employment with the Company, Executive shall return to the Company all computer hardware and/or software provided by or owned by the Company so that, with respect to the software, Executive be deleted as an authorized user.

 

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14. WORK MADE FOR HIRE; INVENTIONS.

 

  14.1 Works for Hire . All work which Executive performed for the Company that is fixed in any tangible medium of expression is a “work made for hire” for the sole and exclusive benefit of the Company according to copyright laws (hereinafter “Work” ). Executive assigns to the Company the entire right, title and interest in and to any and all Work, including, by way of example and not limitation, all designs, drawings, conceptions and improvements, including any copyrights in all original works of authorship fixed in any tangible medium of expression heretofore or hereafter created for the Company by Executive, or furnished to the Company, whether such works were or are created by Executive solely or jointly with others. For all such original Work, the Executive agrees to provide documentation satisfactory to the Company to assure the originality of all such Work and conveyance of all such right, title and interest, including any patents, trademarks and copyrights in the Work to the Company.

 

  14.2 Duty to Disclose . The Executive shall promptly and fully disclose to the Company and shall hold in trust for the Company’s sole right and benefit any Invention that Executive makes, conceives or reduces to practice, or causes to be made, conceived or reduced to practice during the period when Executive is employed by the Company; provided, however, that this disclosure obligation shall only be applicable to those Inventions that relate in any manner to subject matter pertaining to Executive’s employment, or that relate in any manner or are directly or indirectly connected with the business, services, products, projects or Confidential Information of the Company, or that involve in any manner the use of any time, material or facilities of the Company, or services of any of the Company’s employees during normal working hours.

 

  14.3 Assignment . Executive hereby assigns to the Company all of Executive’s right, title and interest in and to all such Inventions that are subject to the disclosure obligations hereof and hereby agrees, upon the Company’s request, to execute, verify, and deliver to the Company documents including, but not limited to, assignments and applications for Letters of Patent, trademark or copyright registrations or any other form or method of government protection provided by any local, state or federal laws of the United States or any other country or political subdivision thereof, and whether such protection is now known or subsequently derived, and to perform such other acts, including, but not limited to, appearing as a witness in any action brought in connection with this Agreement, that is deemed reasonably necessary or appropriate by the Company to allow it to obtain the sole right, title, interest and benefit of all such Inventions.

 

  14.4 Limitation . The assignment of Inventions herein and Executive’s agreements in connection therewith shall not apply to any Invention for which: (a) no equipment, supplies, facilities or Confidential Information of the Company or services of any of the Company’s employees during normal working hours was used; (b) was developed entirely on Executive’s own time; (c) does not relate to the business of the Company or to the Company’s actual or demonstratively anticipated research or development; and (d) which does not result from any work performed by Executive for the Company.

 

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15. NON-SOLICITATION OF CUSTOMERS AND SUPPLIERS.

During Executive’s employment with the Company, and for a period of two (2) years thereafter, without first obtaining the written consent of the Company, which consent may be withheld by the Company in its sole and absolute discretion, Executive shall not, individually or collectively, as a participant in a partnership, sole proprietorship, corporation, limited liability company or other entity, or as an operator, investor, shareholder, partner, director, employee, consultant, manager or advisor of any such entity, or in any other capacity whatsoever, either directly or indirectly (a) solicit or entice, or attempt to solicit or entice, or otherwise divert from the Company (or its successors in interest) any customer of the Company nor to divert from the Company (or its successors in interest) any such customer; or (b) encourage any supplier of the Company (or its successors in interest) to reduce the level of products or services then being supplied or provided by it to the Company (or its successor in interest). As used in this Agreement, “Customer” shall mean any person or entity that the Company, during the period of Executive’s affiliation with it (a) rendered any services or sold anything of value to, or (b) solicited the business of such person or entity, whether or not any services were rendered or anything of value was sold to such person during such period.

 

16. NON-SOLICITATION OF PERSONNEL.

Executive expressly agrees and understands that it would cause substantial harm and detriment to the Company if employees of the Company were to be hired by Executive or lured by Executive to a business similar to that of the Company. Specifically, the harm and detriment that would be incurred by the Company includes, but is not limited to, loss of office continuity and return on investment made in training employees, additional training and hiring costs for replacement employees, potential loss of referral sources and clients, and potential loss of trade secrets and Confidential Information. During Executive’s employ with the Company and for a period of two (2) years thereafter, Executive shall not (a) personally participate, directly or indirectly, in or be materially involved in any manner in the solicitation or enticement or any attempt to solicit or entice any employee of or consultant to the Company (or its successors in interest) to leave the employment of or engagement by the Company (or its successors in interest) nor hire any such employee or consultant as an employee, officer, director, consultant or advisor any person who is at the time of such hiring or attempted hiring an employee of the Company, (b) disclose the name of any employee of the Company to any prospective or subsequent employer for the purpose of assisting in such hiring or attempted hiring of an employee of the Company, or (c) otherwise, directly or indirectly, induce or attempt to induce any employee of the Company to leave the employ of the Company.

 

17. MISCELLANEOUS.

 

  17.1 Notices . All notices and other communications given in connection with this Agreement shall be in writing and shall be given by personal delivery, or by facsimile or similar means, by registered or certified first-class U.S. mail, return receipt requested and postage prepaid, or by express courier or recognized overnight delivery service to the other party hereto at its address or facsimile number set forth below:

 

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If to the Company:

Funko, LLC

c/o Funko Acquisition Holdings, L.L.C.

1202 Shuksan Way

Everett, WA 98203

Attn: Board of Directors

If to the Executive:

Brian Mariotti

 

Notice shall be deemed given: (a) when delivered personally to the recipient; (b) when received, if sent by facsimile or similar means (confirmation of such receipt by confirmed facsimile transmission being deemed receipt of communications sent by facsimile or other means); (c) on the date five (5) days after the date mailed, if sent by registered or certified first-class U.S. mail, return receipt requested and postage prepaid; and (d) when delivered (or upon the date of attempted delivery where delivery is refused), if sent by express courier or recognized overnight delivery service, charges prepaid. Notice of any change in any such address or facsimile number shall also be given in the manner set forth above. Whenever the giving of notice is required, the giving of such notice may be waived by the party entitled to receive such notice.

 

  17.2 Agreement; Amendment . This Agreement supersedes any other agreements or understandings, oral or written, between the parties hereto with respect to the subject matter hereof and represents their entire understanding and agreement with respect to the subject matter hereof. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement and signed by the Company and the Executive.

 

  17.3 Waiver Not Consent . Any waiver of any breach of this Agreement shall not be construed to be a continuing waiver or consent to any subsequent breach by either party hereto.

 

  17.4 Severability . If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

 

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  17.5 Assignment; Binding Effect . This Agreement is not assignable without the prior written consent of both parties hereto. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, successors, legal representatives and permitted assigns.

 

  17.6 Section Headings . The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

  17.7 Section 409A . To the extent the Executive would be subject to the additional 20% tax imposed on certain deferred compensation arrangements pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such tax and the Company and the Executive shall promptly execute any amendment reasonably necessary to implement this Section. Notwithstanding any other provision of this Agreement to the contrary, if at the time of the Executive’s separation from service, (i) the Executive is a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable on account of such separation from service to the Executive constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six (6) month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six (6) month period (or upon the Executive’s death, if earlier). For purposes of Section 409A of the Code, the Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement will not be subject to exchange for another benefit and the amount of expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year.

 

  17.9 Applicable Law . This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Washington applicable to contracts made and performed therein. Venue for all purposes under this Agreement shall be Seattle, Washington.

 

  17.10  Counterparts and Facsimiles . This Agreement may be executed, including execution by facsimile signature, in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

 

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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Employment Agreement as of the date first above written.

 

FUNKO, LLC
By:  

/s/ Kenneth R. Brotman

Name:   Kenneth R. Brotman
Title:   Authorized Representative

 

/s/ Brian Mariotti            

BRIAN MARIOTTI

[SIGNATURE PAGE TO FUNKO EMPLOYMENT AGREEMENT]


Exhibit A

2016 Fiscal Year Bonus

The Bonus for the 2016 fiscal year shall consist of (i) an amount equal to 1% of Incremental EBITDA (as defined below) plus (ii) an amount equal to 2% of Incremental Gross Profit (as defined below).

For purposes of determining the 2016 Fiscal Year Bonus,

EBITDA ” has the meaning specified in that certain Financing Agreement, dated on or about the date of this Agreement, by and among the Company (and certain of its affiliates), Cerberus Business Finance, LLC, PNC Bank, National Association and their affiliates, and the lenders party thereto, as may be amended from time to time.

Incremental EBITDA ” means the amount, if any, by which EBITDA for the applicable fiscal year exceeds EBITDA for the prior fiscal year.

Incremental Gross Profit ” means the amount by which Gross Profit for the applicable fiscal year exceeds Gross Profit for the prior fiscal year.

Gross Profit ” means, for any fiscal year, (x) the Company’s and its subsidiaries’ consolidated revenue for such fiscal year, as determined in accordance with U.S. Generally Acceptable Accounting Principles then in effect (“ GAAP ”) with respect to the Products (excluding (i) any income or gain and (ii) any losses, in either case that results from the sale of any assets or securities of the Company or any of its subsidiaries outside the ordinary course of business consistent with past practice and which was included in clause (x)), minus (y) cost of goods sold, as determined in accordance with GAAP with respect to the Products; in the case of each of (x) and (y), each as reasonably determined by the Board based on such information (including the Company’s and its subsidiaries’ consolidated financial statements) as the Board deems appropriate.

Products ” means, collectively, all products sold under any of the Company’s brands other than “Pop!”

Exhibit 10.19

September 29, 2013

Russell Nickel

Dear Russell,

On behalf of Funko, LLC, I am pleased to offer you the position of Chief Financial Officer.

DUTIES

In your capacity as Chief Financial Officer, your principal responsibilities will be to lead all aspects of the financial operations of Funko: management, analysis and day-to-day financial functions; rendering all such strategic, managerial, administrative and other services as normally are associated with such a position. In addition, you will have direct oversight of the Company’s Human Resources and Information Technology areas.

In this role, you will function as a senior executive of the Company and be a key member of the Leadership Team.

You will report directly to the Chief Executive Officer of Funko. You will also have a strong connection with — and responsibility to — the Company’s Chairman and Fundamental Capital.

COMPENSATION

Salary     Your starting salary will be $175,000 per year, payable in accordance with Funko’s customary payroll practices, which are currently bi-weekly. As part of your annual performance evaluation, your salary will be reviewed on an annual basis.

Bonus     You will be eligible to receive an annual bonus of up to 25% of your salary, payable at the discretion of the Board of Directors. Your bonus will be based on the achievement of specific goals mutually agreed in writing with the Chief Executive Officer in consultation with Fundamental Capital. This bonus plan will include both individual and company goals, reflecting a combination of financial and managerial objectives. For 2012, your bonus will be pro-rated based on the duration of your employment in that year.

Equity Incentive Plan     In connection with the commencement of your employment, you will be granted an option to purchase up to 66,000 common units of the Company at an exercise price no less than the fair market value of the common units on the grant date. The option will be granted pursuant to, and subject to, the Company’s Option Plan and the applicable option agreement. Any common units acquired pursuant to the exercise of the option will be subject to a right of first refusal in favor of the Company and, upon the termination of your employment, the Company will have the right to repurchase such common units, generally at fair market value. This option will be subject to vesting as follows, as long as you remain employed by the Company pursuant to the terms of the agreement at the time of each vesting milestone: the first 12/48 of the units will vest on the 12-month anniversary date of your start date; and thereafter 1/48 of the units will vest on the first day of each calendar month following the anniversary date over the next 36 months. Upon the occurrence of a change-of-control event in the Company’s ownership prior to the full vesting of your options, the Company agrees to the full, equitable acceleration of the vesting of those shares.

 

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BENEFITS .

Benefit Plans     You will be entitled to participate in, or receive, benefits and other perquisites on a basis at least equivalent to that enjoyed generally by other employees of the Company. These benefits include participation in the Company’s medical and dental plans; and participation in the Company’s 401(k) plan.

Paid Time Off     You will be entitled to accrue vacation of 15 business days during each calendar year. Such vacation may be taken at such times as are reasonably consistent with proper performance of your duties and responsibilities. You will also be entitled to ail paid holidays given by the Company to employees generally in accordance with current policy.

EXPENSES

The Company will reimburse you for monthly expenses for your mobile telephone; your participation in the CFO Roundtable; and all reasonable out-of-pocket expenses properly incurred in the performance of your duties and in accordance with policies of the Company.

EMPLOYMENT AT-WILL

While we look forward to a long and profitable relationship, your employment will be at-will which means the employment relationship can be terminated by either of us, for any reason, at any time. Any statements or representations to the contrary (and any statements contradicting any provision in this letter) should be regarded by you as ineffective. Further, your participation in any stock option or benefit program is not to be regarded as assuring you of continuing employment for any particular period of time.

As an employee of the Company, you will have access to certain Company confidential information and you may, during the course of your employment, develop certain information or trade secrets which will he the property of the Company. To protect the interests of the company, you will need to sign a “Confidential information Agreement.” We wish to impress upon you that we do not want you to bring with you any confidential or proprietary material of any former employers prior to your employment at the Company, or to violate any other obligation to your former employers.

Please indicate your acceptance of this offer by signing and returning one copy to me.

Welcome to Funko!

FUNKO, LLC

Brian Mariotti

Chief Executive Officer

/s/ Russell Nickel                

Russell Nickel

Date: 09/30/2013

 

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Exhibit 10.21

June 15, 2016

Tracy D. Daw

Dear Tracy,

On behalf of Funko, LLC, I am pleased to present you an offer of employment for the Senior Vice President, General Counsel position. You will report directly to Brian Mariotti, Chief Executive Officer.

This offer is contingent upon successful completion of a background and reference check, your execution of our Employee Confidentiality, Non-Compete and Non-Socialization Agreement (“Confidentiality Agreement”), and your delivery of the documentation required by the Immigration Reform and Control Act (i.e. a completed I-9 form and supporting documents}.

This offer is valid through the close of business on Monday, June 20, 2016 unless you decline the offer prior to the expiration either verbally or in writing. If you decline the offer, all terms of the offer expire upon notification from you.

If you accept the offer, your employment start date at Funko will be on Monday, July 18, 2016, unless mutually agreed upon,

COMPENSATION

Salary

The annual salary for this position is $300,000 which will be paid on semi-monthly basis as long as you are actively employed by the company. Your semi-monthly salary is subject to deductions for taxes and other withholdings as required by law, and authorized deductions associated with your benefit participation elections.

Your performance and salary will be reviewed on a yearly basis through our performance management process.

Incentive

You will be eligible to receive an annual bonus as outlined by the Company’s bonus plan guidelines and structure which is currently being defined. The annual bonus may be up to 25%, pro-rated based on start date at the Company’s discretion, dependent upon both company and individual performance factors. The criteria/goal expectations will be discussed upon starting.

In addition, and subject to Board of Director approval, we will recommend an equity grant in line with the level of the role, to be determined in accordance with the Company’s incentive plan. This will take place by end of summer 2016.

Sign-on Bonus

The Company will pay a one-time sign-on bonus of $12,500, which will be paid upon completion of ninety days of employment. Payout will take place on the subsequent scheduled payroll and is subject to deductions for taxes, as required by law. If you voluntarily terminate your employment or are terminated for cause within one year of your start date, you will be responsible for the reimbursement of the total amount of this bonus.

BENEFITS

Benefit Plans

As a regular full-time employee, you will be eligible to receive healthcare benefits, effective the first of the month following your date of hire. Benefits include 100% employer paid medical, dental, vision, short term disability, life insurance and EAP, as well as a flexible spending account and voluntary long term disability. See the enclosed Funko Benefits Summary. The benefit plan participation and plan offerings are subject to participant eligibility and individual plan requirements.


Paid Time Off

You will be entitled to take vacation or time off for illness as necessary, during each calendar year. The time will not be tracked or limited. Vacation may be taken at such times as are reasonably consistent with proper performance of your duties and responsibilities. You will also be entitled to all paid holidays given by the Company to employees in accordance with current policy.

OTHER

Expenses

The Company will reimburse you for all reasonable, pre-approved, out-of-pocket expenses properly incurred in the performance of your duties and in accordance with policies of the Company.

Employment at Will

Although we hope your time with us is mutually rewarding, employment is at-will, is for no specified time, and may be terminated by the company or by you, at any time, for any reason. This means that if, for any reason, things do not work out, either you or the Company may end your employment without advance notice. While other terms of employment may change over time, the “at-will” relationship can only be altered in writing signed by the CEO.

Confidential Information

As an employee of the Company, you will have access to Company confidential, proprietary and trade secret information and other Company property, the ownership and protection of which is very important to the Company. Therefore, to accept this offer you must sign our “Confidentiality Agreement.”

On the first day of your employment, we will need to complete required on-boarding paperwork. Documents showing authorization to work in the United States will be required.

We are very excited to have you join our team. Please do not hesitate to contact me with any questions.

Welcome to Funko!

Karen Mars

Director People & Talent Acquisition

I agree to the terms of the employment set forth above and accept the terms of the offer as presented.

 

/s/ Tracy D. Daw                     06/20/2016                
Tracy D. Daw     Date

 

Exhibit 10.23

July 15, 2016

Michael F. McBreen

Dear Michael,

On behalf of Funko, LLC, I am pleased to present you an offer of employment for the, Chief Operating Officer position. You will report directly to Brian Mariotti, Chief Executive Officer.

This offer is contingent upon successful completion of a background and reference check, your execution of our Employee Confidentiality, Non-Compete and Non-Solicitation Agreement (“Confidentiality Agreement”), and your delivery of the documentation required by the Immigration Reform and Control Act (i.e. a completed I-9 form and supporting documents).

This offer is valid through the close of business on Wednesday, July 20, 2016 unless you decline the offer prior to the expiration either verbally or in writing. If you decline the offer, all terms of the offer expire upon notification from you.

If you accept the offer, we would like you to start your employment as soon as possible on a mutually agreeable date, but ultimately it should not be later than October 1, 2016.

COMPENSATION

Salary

The annual salary for this position is $350,000 which will be paid on semi-monthly basis as long as you are actively employed by the company. Your semi-monthly salary is subject to deductions for taxes and other withholdings as required by law, and authorized deductions associated with your benefit participation elections.

Your performance and salary will be reviewed on a yearly basis through our performance management process.

Incentive

You will be eligible to receive an annual bonus as outlined by the Company’s bonus plan guidelines and structure which is currently being defined. The annual bonus may be up to 30%, pro-rated based on start date at the Company’s discretion, dependent upon both company and individual performance factors. The criteria/goal expectations will be reviewed with you.

In addition, you are eligible for an equity grant in line with the level oftherole.at one thousand (1,000) Common Units in accordance with the Company’s equity incentive plan.

BENEFITS

Benefit Plans

As a regular full-time employee, you will be eligible to receive healthcare benefits, effective the first of the month following your date of hire. Benefits include 100% employer paid medical, dental, vision, short term disability, life insurance and EAP, as well as a flexible spending account and voluntary long term disability. See the enclosed Funko Benefits Summary. The benefit plan participation and plan offerings are subject to participant eligibility and individual plan requirements.

Paid Time Off

You will be entitled to take vacation or time off for illness as necessary, during each calendar year. The time will not be tracked or limited. Vacation may be taken at such times as are reasonably consistent with proper performance of your duties and responsibilities. You will also be entitled to all paid holidays given by the Company to employees in accordance with current policy.


OTHER

Expenses

The Company will reimburse you for all reasonable, pre-approved, out-of-pocket expenses properly incurred in the performance of your duties and in accordance with policies of the Company.

Relocation

The Company will reimburse you for any reasonable moving expenses for moves associated with your relocation (from Kansas to Washington and Oregon to Washington), if they take place within the first year of employment. You will be reimbursed within two weeks of presentment of receipts documenting such moving expenses (the “Moving Allowance”).

Employment at Will

Although we hope your time with us is mutually rewarding, employment is at-will, is for no specified time, and may be terminated by the company or by you, at any time, for any reason. This means that if, for any reason, things do not work out, either you or the Company may end your employment without advance notice. While other terms of employment may change overtime, the “at-will” relationship can only be altered in writing signed by the CEO.

Confidential Information

As an employee of the Company, you will have access to Company confidential, proprietary and trade secret information and other Company property, the ownership and protection of which is very important to the Company. Therefore, to accept this offer you must sign our “Confidentiality Agreement.”

On the first day of your employment, we will need to complete required on-boarding paperwork. Documents showing authorization to work in the United States will be required.

We are very excited to have you join our team. Please do not hesitate to contact me with any questions.

Welcome to Funko!

Russell Nickel

Chief Financial Officer

I agree to the terms of the employment set forth above and accept the terms of the offer as presented.

 

/s/ Michael F. McBreen                     07/17/16                 
Michael F. McBreen     Date

Exhibit 10.24

August 28, 2017

Michael McBreen

VIA HAND DELIVERY

Dear Michael:

As we have discussed, your employment with Funko, LLC (“Funko” or the “Company”) will end effective August 28, 2017 (the “End Date”). You have provided Funko with your notice of resignation effective today, and we accept it. We have appreciated your work for us and wish to offer you a Separation Package. By signing this letter, you are accepting the Package and agreeing to the terms noted in this letter.

We are offering you a severance payment equal to six (6) months of your current salary. The severance payment will be paid in a lump sum on the first regular payday at least eight (8) days after you sign this agreement. The severance payment will be subject to normal payroll deductions and withholdings.

Your existing medical insurance through the Company, if any, will continue until the end of the month of August 2017. You may be eligible to continue your participation in certain benefits pursuant to COBRA beyond that date. As part of the Separation Package, Funko agrees to pay the employer and employee cost of continuation coverage under COBRA for twelve (12) months at your current level and scope of coverage (i.e., if you are currently covering one dependent, Funko will pay to continue that coverage). Funko will work directly with its third party administrator to pay these sums; you do not need to pay and subsequently seek reimbursement from Funko.

You agree that, within five days of the End Date, you will submit your final documented expense report, if any, reflecting all approved business expenses you have incurred on the Company’s behalf through the End Date. These expenses will be reimbursed within a reasonable time per Company policy.

Funko will not contest your application for unemployment benefits, provided it is truthful.

You acknowledge that no other amounts (including but not limited to accrued PTO, incentive payments, or any amount attributable to vesting under equity grants) are or will be due and/or owed to you by Funko or any other related or affiliated person or entity other than as set forth in this letter.

Since the Company does not offer severance to all employees, you agree to keep the information in this letter confidential. You can tell your accountant, attorney, and spouse about the terms of this letter, but only after telling them that it is confidential and they must also agree not to talk about it to others.

One aspect of a long-term amicable relationship is that you agree not to bring any claims against us. Therefore; in exchange for the Separation Package (which you acknowledge that


you would not otherwise receive), you agree that you and your spouse release and hold harmless Funko and any of its affiliated entities or directors, officers, shareholders, members, agents and employees from all claims and obligations of any kind, whether contractual, statutory or based in common law, monetary or non-monetary. This includes claims that you have not yet discovered exist and regardless of whether the claims are contingent or mature. You understand that this release is intended to be a full and complete release of any and all claims you might have against us. This includes, but is not limited to, all claims arising out of or relating to your employment or separation from the Company. The only claims excluded from this release are claims relating to breach or enforceability of this agreement and your right to file a complaint with a governmental agency. With regard to governmental agency complaints, however, you understand and agree that you are expressly waiving any right to obtain monetary damages or any other relief that provides personal benefit resulting from the agency claim. This waiver and release is effective to the full extent the law permits you to release your individual claims. It does not affect reimbursement rights you may currently possess under any health insurance coverage or accrued rights you may have under any retirement plan.

We want to make sure that you have an opportunity to fully consider this agreement and to consult with legal counsel. You, therefore, have twenty one (21) days to review this agreement and to decide whether to sign it. You may choose to sign it at any time during this twenty one day period. Obviously, any delay in signing will delay your receipt of the benefits (such as severance and the COBRA payments) provided by the Agreement. After signing, you may revoke the agreement any time within seven (7) calendar days after signing it by providing Tracy Daw with written notice of revocation within that time frame. If you do not revoke it, this Agreement will become effective on the eighth (8th) day after we receive your signed copy of this letter.

Upon reasonable advance notice, Funko will provide you with reasonable access to its facilities after the End Date to allow you to remove your personal effects, including your desk. You agree to, by the End Date, return to Funko all company property in your possession or under your direct or indirect control. Such property could include files, notes, records, financial information, product information, computer-recorded information, customer lists, keys, Company-provided computer and/or phone, and any materials which contain Funko’s proprietary or confidential information.

Portions of the Confidentiality Agreement and Common Unit Grant Agreement that you signed, such as your confidentiality, noncompetition/nonsolicitation, and non-disparagement obligations, remain effective after the end of your employment. You agree that this letter, along with the sections of those documents that continue after the end of your employment, represents the entire understanding and agreement between you and Funko regarding your employment and separation. In the event any provision or portion of this agreement is held to be unenforceable or invalid, the remainder of this agreement shall remain in full force.

Michael, we have appreciated your service to the Company, and we wish you the best in your future endeavors. If you have any questions, please feel free to contact me directly.


Sincerely,

Karen Mars

Director of People

 

AGREED AND UNDERSTOOD:    

AGREED AND UNDERSTOOD:

 

FOR Funko, LLC:

/s/ Michael McBreen     By:   /s/ Brian Mariotti
Michael McBreen     Title:   CEO
Dated:08/28/17     Dated: 08/28/17

Exhibit 21.1

 

Legal Name

  

Place of Incorporation

Funko Acquisition Holdings, L.L.C.

   Delaware

Funko Holdings LLC

   Delaware

Funko, LLC

   Washington

Funko UK, Ltd.

   United Kingdom

Loungefly, LLC

   California

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” and to the use of our report dated April 28, 2017 in the Registration Statement (Form S-1) and the related Prospectus of Funko, Inc. for the registration of its common stock.

/s/ Ernst & Young LLP

Seattle, Washington

October 6, 2017

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” and to the use of our report dated April 28, 2017 with respect to the consolidated financial statements of Funko Acquisition Holdings, L.L.C. and Subsidiaries included in the Registration Statement (Form S-1) and the related Prospectus of Funko, Inc. for the registration of shares of its common stock.

/s/ Ernst & Young LLP

Seattle, Washington

October 6, 2017