STALKING HORSE AGREEMENT
This Fifth Amendment to Stalking Horse Agreement (this Amendment), is made and entered into as of October 7, 2020 by and among GNC Holdings, Inc., a Delaware corporation (the Seller), on behalf of itself and the other Selling Entities, and Harbin Pharmaceutical Group Holding Co., Ltd., a corporation incorporated in the Peoples Republic of China (the Buyer, together with the Seller and the other Selling Entities, the Parties and each, a Party), and amends the Stalking Horse Agreement, dated as of August 7, 2020, by and among the Selling Entities and the Buyer, as amended by that certain First Amendment dated as of August 15, 2020, that certain Second Amendment dated as of August 19, 2020, that certain Third Amendment dated as of September 8, 2020 and that certain Fourth Amendment dated as of September 17, 2020 (collectively, the Agreement). Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to such terms in the Agreement.
WHEREAS, the Parties, in accordance with Section 10.1 of the Agreement, wish to amend the Agreement as set forth in this Amendment.
NOW, THEREFORE, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
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Amendment to Section 1.1. Section 1.1 of the Agreement is hereby amended by adding the following new definition:
Post-Effective Date Escrow Amount means the portion of the Effective Date True-Up Amount the Selling Entities and the Buyer determine is necessary for any remaining unpaid expenses and contingent liabilities of the Selling Entities.
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Amendment to Section 2.1(d). Section 2.1(d) of the Agreement is hereby amended by adding the double-underlined bolded text (indicated textually in the same manner as the following example: double-underlined bolded text), as follows:
(d) all (x) royalties, advances, prepaid assets, security and other deposits, prepayments and other current assets relating to the Business, the Assumed Agreements and the Assumed Real Property Leases, in each case of the Selling Entities as of the Closing and (y) royalty payments required to be made with respect to the right to use the GNC Names and Marks by counterparties to Contracts of the Selling Entities that are rejected in the Bankruptcy Case, to the extent that such rights were retained by any such counterparties (it being understood and agreed, for the avoidance of doubt, the Buyer shall not be liable for any Liabilities related to the Debtors rejection of such contracts);
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Amendment to Section 2.5(b). Section 2.5(b) of the Agreement is hereby amended by (x) adding the double-underlined bolded text (indicated textually in the same manner as the following example: double-underlined bolded text) and (y) deleting the bolded text with strikethrough (indicated textually in the same manner as the following example:
bolded text with strikethrough), as follows:
(b) From and after the date of this Agreement until one (1) Business Day prior to the Bid Deadline (as defined in the Bidding Procedures Order), the Buyer may, in its sole discretion, designate any Contract of any Selling Entity as an Assumed Agreement or