TherapeuticsMD, Inc. 10-Q


Exhibit 10.4


 


Execution Version


 


AMENDMENT
NO. 5

TO FINANCING AGREEMENT


 


AMENDMENT
NO. 5 TO FINANCING AGREEMENT, dated as of August 5, 2020 (this “Amendment”), to the Financing Agreement,
dated as of April 24, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Financing
Agreement”), by and among THERAPEUTICSMD, INC., a Nevada corporation (“Company” or “Borrower”),
certain Subsidiaries of Borrower, as Guarantors, the Lenders from time to time party thereto, and SIXTH STREET SPECIALTY LENDING,
INC. (f/k/a TPG Specialty Lending, Inc.), a Delaware corporation (“Sixth Street”), as administrative agent for
the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”).


 


WHEREAS,
the Loan Parties have requested that the Administrative Agent and the Lenders amend certain terms and conditions of the Financing
Agreement; and


 


WHEREAS,
the Administrative Agent and the Lenders are willing to amend such terms and conditions of the Financing Agreement on the terms
and conditions set forth herein.


 


NOW
THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:


 


1.
Definitions. All terms used herein that
are defined in the Financing Agreement and not otherwise defined herein shall have the meanings assigned to them in the Financing
Agreement.


 


2.
Amendments.


 


(a)
          Certain References. All references in the Financing Agreement to
(i) TPG Specialty Lending, Inc. are hereby deemed to refer to Sixth Street Specialty Lending, Inc. and (ii) TSL are hereby deemed
to refer to Sixth Street.


 


(b)
         New Definitions. Section 1.01 of the Financing Agreement is hereby
amended by adding the following definitions, in appropriate alphabetical order:


 


(i)                 
““Amendment No. 5” means Amendment No. 5 to Financing Agreement, dated as of August 5, 2020, by and among
the Loan Parties, the Administrative Agent and the Lenders.”


 


(ii)               
““Amendment No. 5 Effective Date” means the “Amendment Effective Date” as set forth in Amendment
No. 5.”


 


(c)
          Section 6.8(b) (Minimum Revenue). Section 6.8(b) of the Financing
Agreement is hereby amended and restated in its entirety to read as follows:


 






    


    


    

 


“(b) Minimum
Revenue. Borrower shall not permit Product Revenue for any Fiscal Quarter set forth below to be less than the amount set forth
opposite such Fiscal Quarter:


 


	Fiscal
    Quarter Ending	 	Product
    Revenue
	December
    31, 2020	 	$20,000,000
	March
    31, 2021	 	$25,000,000
	June
    30, 2021	 	$37,500,000
	September
    30, 2021	 	$47,500,000
	December
    31, 2021	 	$57,500,000
	March
    31, 2022	 	$65,000,000
	June
    30, 2022	 	$75,000,000
	September
    30, 2022	 	$85,000,000
	December
    31, 2022 and each Fiscal Quarter thereafter	 	$95,000,000”


 


(d)
         Appendix B. Appendix B to the Financing Agreement is hereby amended
and restated in its entirety in the form annexed hereto as Exhibit 1.


 


3.
Conditions to Effectiveness. This Amendment
shall become effective only upon satisfaction in full, in a manner satisfactory to the Administrative Agent, of the following
conditions precedent (the first date upon which all such conditions shall have been satisfied being hereinafter referred to as
the “Amendment Effective Date”):


 


(a)
          Payment of Fees, Etc. The Borrowers shall have paid on or before
the Amendment Effective Date all fees, costs, expenses and taxes then payable, if any, pursuant to Section 2.7 or 10.2
of the Financing Agreement.


 


(b)
         Representations and Warranties. The representations and warranties contained
in this Amendment and in Article IV of the Financing Agreement and in each other Loan Document shall be true and correct
in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties
that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof,
which representations and warranties shall be true and correct in all respects subject to such qualification) on and as the Amendment
Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in
all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that
already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which
representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier
date.


 






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(c)          No Default; Event of Default. No Default or Event of Default shall
have occurred and be continuing on the Amendment Effective Date or result from this Amendment becoming effective in accordance
with its terms.


 


(d)
         Delivery of Documents. The Administrative Agent shall have received on
or before the Amendment Effective Date:


 


(i)               this Amendment, duly executed by the Loan Parties, the Administrative Agent and the Lenders; and


 


(ii)             (A) the Warrant to Purchase Common Stock of the Borrower and (B) the Subscription Agreement between the Borrower and Sixth Street,
in each case dated as of the date hereof and in form and substance acceptable to the Administrative Agent and the Lenders.


 


(e)
         Material Adverse Effect. The Administrative Agent shall have determined,
in its reasonable judgment, that no event or development shall have occurred since December 31, 2019, which could reasonably be
expected to have a Material Adverse Effect.


 


(f)
          Liens; Priority. The Administrative Agent shall be satisfied
that the Administrative Agent has been granted, and holds, for the benefit of the Administrative Agent and the Lenders, a perfected,
first priority Lien on and security interest in all of the Collateral, subject only to Permitted Liens, to the extent such Liens
and security interests are required pursuant to the Loan Documents to be granted or perfected on or before the Amendment Effective
Date.


 


(g)
         Approvals. All consents, authorizations and approvals of, and filings
and registrations with, and all other actions in respect of, any Governmental Authority or other Person required in connection
with any Loan Document or the transactions contemplated thereby or the conduct of the Loan Parties’ business shall have been obtained
or made and shall be in full force and effect. There shall exist no claim, action, suit, investigation, litigation or proceeding
(including, without limitation, shareholder or derivative litigation) pending or, to the knowledge of any Loan Party, threatened
in any court or before any arbitrator or Governmental Authority which (i) relates to the Loan Documents or the transactions
contemplated thereby or (ii) could reasonably be expected to have a Material Adverse Effect.


 


4.
Continued Effectiveness of the Financing Agreement
and Other Loan Documents. Each Loan Party hereby (a) acknowledges and consents to this Amendment, (b) confirms and agrees
that the Financing Agreement and each other Loan Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment Effective Date, all references
in any such Loan Document to “the Financing Agreement”, the “Agreement”, “thereto”, “thereof”,
“thereunder” or words of like import referring to the Financing Agreement shall mean the Financing Agreement as amended
by this Amendment, and (c) confirms and agrees that, to the extent that any such Loan Document purports to assign or pledge
to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, or to grant to the Administrative Agent,
for the benefit of the Administrative Agent and the Lenders, a security interest in or Lien on any Collateral as security for
the Obligations of the Loan Parties from time to time existing in respect of the Financing Agreement (as amended hereby) and the
other Loan Documents, such pledge, assignment and/or grant of the security interest or Lien is hereby ratified and confirmed in
all respects. This Amendment does not and shall not affect any of the obligations of the Loan Parties, other than as expressly
provided herein, including, without limitation, the Loan Parties’ obligations to repay the Loans in accordance with the terms
of Financing Agreement or the obligations of the Loan Parties under any Loan Document to which they are a party, all of which
obligations shall remain in full force and effect. Except as expressly provided herein, the execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power or remedy of Administrative Agent or any Lender under the
Financing Agreement or any other Loan Document nor constitute a waiver of any provision of the Financing Agreement or any other
Loan Document.


 






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5.
No Novation. Nothing herein contained
shall be construed as a substitution or novation of the Obligations outstanding under the Financing Agreement or instruments securing
the same, which shall remain in full force and effect, except as modified hereby.


 


6.
No Representations by Administrative Agent
or Lenders. Each Loan Party hereby acknowledges that it has not relied on any representation, written or oral, express or
implied, by Administrative Agent or any Lender, other than those expressly contained herein, in entering into this Amendment.


 


7.
Release. Each Loan Party hereby acknowledges
and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against Administrative Agent or any
Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Administrative
Agent and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan
Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Administrative Agent and the Lenders
wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances
would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration
of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries
and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”)
does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Administrative Agent and
the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents,
attorneys and consultants of each of the foregoing (collectively, the “Released Parties”), from any and all debts,
claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes
of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description,
and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter
can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done,
in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment,
the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements
of Administrative Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of
any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral.
Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of
any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against
any Released Party which would not be released hereby.


 






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8.
Further Assurances. The Loan Parties shall
execute any and all further documents, agreements and instruments, and take all further actions, as may be required under applicable
law or as Administrative Agent may reasonably request, in order to effect the purposes of this Amendment.


 


9.
Miscellaneous.


 


(a)
          This Amendment 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. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail shall
be equally effective as delivery of an original executed counterpart of this Amendment.


 


(b)
           Section and paragraph headings herein are included for convenience of reference
only and shall not constitute a part of this Amendment for any other purpose.


 


(c)
           This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.


 


(d)
          Each Loan Party hereby acknowledges and agrees that this Amendment constitutes
a “Loan Document” under the Financing Agreement. Accordingly, it shall be an immediate Event of Default under the Financing
Agreement if (i) any representation or warranty made by any Loan Party under or in connection with this Amendment shall have been
incorrect in any respect when made or deemed made, or (ii) any Loan Party shall fail to perform or observe any term, covenant
or agreement contained in this Amendment.


 


(e)
           Any provision of this Amendment that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.


 


[Remainder
of page intentionally left blank.]


 






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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first
page hereof.


 





	 	BORROWER:
	 	 	 
	 	THERAPEUTICSMD,
    INC.
	 	 	 
	 	By:	/s/
    Robert G. Finizio
	 	Name:	Robert
    G. Finizio
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	GUARANTORS:
	 	 	 
	 	VITAMEDMD,
    LLC
	 	 	 
	 	By:	/s/
    Robert G. Finizio
	 	Name:	Robert
    G. Finizio
	 	Title:	Manager
	 	 	 
	 	BOCAGREENMD,
    INC.
	 	 	 
	 	By:	/s/
    Robert G. Finizio
	 	Name:	Robert
    G. Finizio
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	VITACARE
    PRESCRIPTION SERVICES, INC.
	 	 	 
	 	By:	/s/
    John C.K. Milligan, IV
	 	Name:	John
    C.K. Milligan, IV
	 	Title:	Assistant
    Secretary



 






     


     


    

 





 


	 	SIXTH
    STREET SPECIALTY LENDING, INC., as Administrative Agent and Lender
	 	 	 
	 	By:	/s/
    Joshua Easterly 
	 	 	Name:
    Joshua Easterly
	 	 	Title:
    Chief Executive Officer
	 	 	 
	 	TOP
    IV TALENTS, LLC, as Lender
	 	 	 
	 	By:	/s/
    Joshua Peck 
	 	 	Name:
    Joshua Peck
	 	 	Title:
    Vice President
	 	 	 
	 	TAO
    TALENTS, LLC, as Lender
	 	 	 
	 	By:	/s/
    Joshua Peck 
	 	 	Name:
    Joshua Peck
	 	 	Title:
    Vice President






 








     


     


    

 


Exhibit
1 to Amendment No. 5


 


APPENDIX
B

TO FINANCING AGREEMENT


 


Notice
Addresses


 


THERAPEUTICSMD,
INC.


 


951
Yamato Road, Suite 220

Boca Raton, FL 33431

Attention: James C. D’Arecca, Chief Financial Officer








VITAMEDMD,
LLC





BOCAGREENMD,
INC. 


VITACARE
PRESCRIPTION SERVICES, INC.


 


951
Yamato Road, Suite 220

Boca Raton, FL 33431

Attention: James C. D’Arecca, Chief Financial
Officer


 


in
each case, with a copy to:


 


DLA
Piper LLP

200 South Biscayne Boulevard

Suite 2500

Miami, FL 33131

Attention: Joshua M. Samek


 






     


     


    

 


SIXTH
STREET SPECIALTY LENDING, INC., as





Administrative
Agent and a Lender


 


Administrative
Agent’s Principal Office: 


888
7th Avenue, 35th Floor





New
York, NY 10106

Attention: Parker Hooper


 


with
a copy to:


 


Proskauer
Rose LLP

Eleven Times Square 


New
York, New York 10036

Attention: Frederic L. Ragucci


 


TOP
IV TALENTS, LLC and





TAO
TALENTS, LLC

as Lenders 


2100
McKinney Avenue, Suite 1030





Dallas,
Texas 75201

Attention: TSSPOps


 


with
a copy to:


 


Proskauer
Rose LLP

Eleven Times Square 


New
York, New York 10036

Attention: Frederic L. Ragucci