Exhibit 10.5
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
This FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this “Agreement”), dated as of April 26, 2024 (the “First Amendment Effective Date”), is entered into by and among BIOTE MEDICAL, LLC, a Texas limited liability company (the “Borrower”), BIOTE HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), the other Guarantors party hereto, the Lenders party hereto, and Truist Bank, as the Administrative Agent (the “Administrative Agent”).
R E C I T A L S
WHEREAS, the Borrower, Holdings, the other Guarantors, the Lenders, and the Administrative Agent have entered into that certain Credit Agreement, dated as of May 26, 2022 (as amended, restated, amended and restated, supplemented, increased, extended, refinanced, renewed, replaced, and/or otherwise modified in writing from time to time, the “Credit Agreement”);
WHEREAS, the Loan Parties have failed to comply with the covenant set forth in Section 7.5 of the Credit Agreement by agreeing to make Restricted Payments for repurchases of Capital Stock in the Parent and Holdings pursuant to the Donovitz Settlement Agreement (as defined in the Credit Agreement (as amended by this Agreement)), and as a result, an Event of Default has occurred under the Credit Agreement (the “Specified Event of Default”);
WHEREAS, the Borrower has requested that the Lenders waive the Specified Event of Default and amend the Credit Agreement as set forth below, in each case, subject to the terms and conditions specified in this Agreement; and
WHEREAS, the Lenders (by act of Lenders constituting Required Lenders and Required Revolving Lenders) have agreed to waive the Specified Event of Default and make the requested amendments to the Credit Agreement, in each case, upon the terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereto hereby agree as follows:
A G R E E M E N T
“Donovitz Settlement Agreement” means that certain Settlement Agreement, effective as of April 23, 2024, among, inter alios, the Parent and Dr. Gary S. Donovitz.
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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) 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;
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[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 | ||
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| By: |
| BIOTE HOLDINGS, LLC, its Sole Member |
| By: |
| BIOTE CORP., its Managing Member |
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| By: |
| /s/Robert Peterson |
| Name: |
| Robert Peterson |
| Title: |
| Chief Financial Officer |
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GUARANTORS: | BIOTE HOLDINGS, LLC, a Delaware limited liability company | ||
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| By: |
| BIOTE CORP., its Managing Member |
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| By: |
| /s/Robert Peterson |
| Name: |
| Robert Peterson |
| Title: |
| Chief Financial Officer |
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| BIOTE IP, LLC, a Nevada limited liability company | ||
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| 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 | ||
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| 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 | ||
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| By: |
| /s/Troy R. Weaver |
| Name |
| Troy R. Weaver |
| Title: |
| Managing Director |
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| BANK OF AMERICA, N.A., | ||
| as a Lender | ||
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| By: |
| /s/Alexander L. Rody |
| Name |
| Alexander L. Rody |
| Title: |
| Senior Vice President |
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
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| By: |
| /s/Matthew Beltman |
| Name |
| Matthew Beltman |
| Title: |
| Director |
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