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“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. “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. “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. “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. 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. 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. “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. “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. “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. 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. “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. “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. “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. 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. 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. 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. (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. (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. 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. 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 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. 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. 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. (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. 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. 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). 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). 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. 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. 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. 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.
(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. 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. 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. 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. 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 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). 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. 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. 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. 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). 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. 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. 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. 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. 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. (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. 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. 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. 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. 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. 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. (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”). 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. 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. 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. 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. (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. 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. 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. 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. 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. tim has 20 years of experience representing a wide variety of emerging and established companies in the technology, software, bitcoin and professional services industries. in this capacity, i have drafted a broad range of legal documents as well as analyzed proposed agreements drafted by the other party’s attorney to the agreement for the pupose of determining the risks to which my client would be exposed.
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