“Donovitz和解协议”意指2024年4月23日生效的某项和解协议，涉及 inter alios，母公司和Gary S. Donovitz博士。
(c)
In Section 1.1 (Definitions) of the Credit Agreement, the definition of “Material Agreements” is hereby amended in its entirety to read as follows:
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“Material Agreements” shall mean (i) all agreements, indentures or notes governing the terms of any Material Indebtedness, (ii) the Donovitz Settlement Agreement, and (iii) all other agreements, documents, contracts, indentures and instruments pursuant to which (A) any Loan
Party or any of its Subsidiaries are obligated to make payments in any twelve month period in excess of the Threshold Amount, (B) any Loan Party or any of its Subsidiaries expects to receive revenue in any twelve month period in excess of the Threshold Amount and (C) a default, breach or termination thereof could reasonably be expected to result in a Material Adverse Effect.
(d)
Clause (d) in Section 7.5 (Restricted Payments) of the Credit Agreement is hereby amended in its entirety to read as follows:
(d) payments for repurchases of Capital Stock in the Parent pursuant to the Donovitz Settlement Agreement in amounts equal to (i) $32,162,261.67 on the date that is three business days after the effective date of the Donovitz Settlement Agreement (such date, the “Settlement Agreement Closing Date”), (ii) $15,081,130.83 on or before the 12-month anniversary of the Settlement Agreement Closing Date, (iii) $19,081,130.83 on or before the 24-month anniversary of the Settlement Agreement Closing Date, and (iv) $10,540,565.42 on or before the 36-month anniversary of the Settlement Agreement Closing Date;
4.
Effectiveness; Condition Precedent. This Agreement shall become effective as of the First Amendment Effective Date upon receipt by the Administrative Agent of a counterpart of this Agreement duly executed by each of the Administrative Agent, Lenders constituting Required Lenders and Required Revolving Lenders, the Borrower, Holdings, and the other Guarantors.
5.
Miscellaneous.
(a)
This Agreement shall be deemed to be, and is, a Loan Document.
(b)
Effective as of the First Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Agreement.
(c)
Except as expressly modified by this Agreement, the Credit Agreement, the Loan Documents, and the obligations of each Loan Party thereunder and under the other Loan Documents are hereby ratified and confirmed and shall continue and remain in full force and effect according to their respective terms.
(d)
Each of the Loan Parties: (i) acknowledges and consents to all of the terms and conditions of this Agreement; (ii) agrees that this Agreement, and all documents executed in connection herewith, do not operate to reduce or discharge any of its obligations under the Credit Agreement or the other Loan Documents, or any certificates, documents, agreements and/or instruments executed in connection herewith or therewith; (iii) affirms all of its respective obligations under the Loan Documents; (iv) agrees that this Agreement shall in no manner impair, or otherwise adversely affect, any of the Liens granted in, or pursuant to, any of the Loan Documents; and (v) affirms that each of the Liens granted in, or pursuant to, any of the Loan Documents is valid and subsisting.
(e)
Each of the Loan Parties hereby represents and warrants to the Administrative Agent and each of the Lenders as follows:
(i)
such Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(ii)
this Agreement has been duly executed and delivered by such Loan Party and constitutes such Loan Party’s legal, valid and binding obligations, enforceable in accordance with
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its terms;
(iii)
no consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Agreement;
(iv)
after giving effect to this Agreement, all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) as of such earlier date; and
(v)
after giving effect to this Agreement, no Default or Event of Default exists.
(f)
This Agreement may be executed by one (1) or more of the parties to this Agreement on any number of separate counterparts (including by telecopy), and all of said counterparts, taken together, shall be deemed to constitute one (1) and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or by any other electronic imaging means (including in “.pdf” form), shall be effective as delivery of a manually executed counterpart of this Agreement.
(g)
THIS AGREEMENT, AND ANY CLAIMS, CONTROVERSIES, DISPUTES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS AGREEMENT, AND/OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY, THE LAWS (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF NEW YORK.
6.
Reaffirmation of Obligations. Each of the Loan Parties: (a) acknowledges and consents to all of the terms and conditions of this Agreement; (b) affirms all of its obligations under the Loan Documents (as amended by this Agreement); and (c) agrees that this Agreement, and all documents, agreements and instruments executed in connection with this Agreement, do not operate to reduce or discharge such Loan Party’s obligations under the Loan Documents (except to the extent that such obligations are expressly modified pursuant to this Agreement).
7.
Reaffirmation of Security Interests. Each of the Loan Parties: (a) affirms that each of the Liens granted in, or pursuant to, any of the Loan Documents is valid and subsisting; and (b) agrees that this Agreement, and all documents, agreements and instruments executed in connection with this Agreement, do not, in any manner, impair, or otherwise adversely affect, any of the Liens granted in, or pursuant to, any of the Loan Documents.
8.
No Other Changes. Except as expressly modified hereby, all of the terms and provisions of the Loan Documents shall remain in full force and effect.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
BORROWER:
BIOTE MEDICAL, LLC,
a Texas limited liability company
By:
BIOTE HOLDINGS, LLC, its Sole Member
By:
BIOTE CORP., its Managing Member
By:
/s/Robert Peterson
Name:
Robert Peterson
Title:
Chief Financial Officer
GUARANTORS:
BIOTE HOLDINGS, LLC,
a Delaware limited liability company
By:
BIOTE CORP., its Managing Member
By:
/s/Robert Peterson
Name:
Robert Peterson
Title:
Chief Financial Officer
BIOTE IP, LLC,
a Nevada limited liability company
By:
/s/Robert Peterson
Name:
Robert Peterson
Title:
Chief Financial Officer
Signature Page to First Amendment to Credit Agreement and Waiver (BioTE Medical, LLC)
ADMINISTRATIVE AGENT:
TRUIST BANK,
as the Administrative Agent
By:
/s/Troy R. Weaver
Name:
Troy R. Weaver
Title:
Managing Director
LENDERS:
TRUIST BANK,
as a Lender, the Issuing Bank and the Swingline Lender