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 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.
5.
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).
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6.
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.
7.
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
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