TherapeuticsMD, Inc. 10-Q [txmd-10q_063019.htm]
Exhibit 10.2
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS
NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF
PUBLICLY DISCLOSED. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.
Execution Version
PLEDGE AND SECURITY AGREEMENT
dated as of April 24, 2019
among
EACH OF THE GRANTORS PARTY HERETO
and
TPG SPECIALTY LENDING, INC.,
as Administrative Agent
TABLE OF CONTENTS
SECTION 1. DEFINITIONS; GRANT OF SECURITY 1 1.1
General Definitions 1
1.2
Definitions; Interpretation 6 SECTION 2. GRANT OF SECURITY 7 2.1
Grant
of Security 7 2.2
Certain Limited Exclusions 8 SECTION 3. SECURITY FOR
OBLIGATIONS; GRANTORS REMAIN LIABLE 9 3.1
Security for Obligations 9
3.2
Continuing Liability Under Collateral 9 SECTION 4. REPRESENTATIONS AND
WARRANTIES AND COVENANTS 9 4.1
Generally 9 4.2
[Reserved] 12
4.3
Receivables 12 4.4
Investment Related Property 14 4.5
Material
Contracts 20 4.6
Letter of Credit Rights 21 4.7
Intellectual Property 21
4.8
Commercial Tort Claims 25 SECTION 5. ACCESS; RIGHT OF INSPECTION AND
FURTHER ASSURANCES; ADDITIONAL GRANTORS 25 5.1
[Reserved] 25 5.2
Further
Assurances 25 5.3
Additional Grantors 26 SECTION 6. ADMINISTRATIVE AGENT
APPOINTED ATTORNEY-IN-FACT 26 6.1
Power of Attorney 26 6.2
No Duty on the
Part of Administrative Agent or Secured Parties 27 SECTION 7. REMEDIES. 27
7.1
Generally 27 7.2
Application of Proceeds 29 7.3
Sales on Credit 30
7.4
Deposit Accounts 30 7.5
Investment Related Property 30
7.6
Intellectual Property 30 7.7
Cash Proceeds 32
SECTION 8. [RESERVED]
32 SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF TERM LOANS 33 SECTION
10. STANDARD OF CARE; ADMINISTRATIVE AGENT MAY PERFORM 33 SECTION 11.
MISCELLANEOUS 33
Schedules
i
SCHEDULE 4.1 - GENERAL INFORMATION
SCHEDULE 4.4 - INVESTMENT RELATED PROPERTY
SCHEDULE 4.5 - MATERIAL CONTRACTS
SCHEDULE 4.6 - DESCRIPTION OF LETTERS OF CREDIT
SCHEDULE 4.7 - INTELLECTUAL PROPERTY - EXCEPTIONS
SCHEDULE 4.8 - COMMERCIAL TORT CLAIMS
Exhibits
EXHIBIT A - PLEDGE SUPPLEMENT
EXHIBIT B - TRADEMARK SECURITY AGREEMENT
EXHIBIT C - COPYRIGHT SECURITY AGREEMENT
EXHIBIT D - PATENT SECURITY AGREEMENT
ii
This PLEDGE AND SECURITY AGREEMENT, dated as of April 24, 2019 (as amended,
restated, supplemented or otherwise modified from time to time in accordance
with and subject to the terms and conditions hereof, this "Agreement"), among
EACH OF THE UNDERSIGNED, whether as an original signatory hereto or as an
Additional Grantor (as herein defined) (each, a "Grantor"), and TPG Specialty
Lending, Inc., as administrative agent for the Secured Parties (as herein
defined) (in such capacity as administrative agent, the "Administrative Agent").
RECITALS:
WHEREAS, reference is made to that certain Financing Agreement, dated as of the
date hereof (as it may be amended, restated, supplemented or otherwise modified
from time to time, the "Financing Agreement"), by and among THERAPEUTICSMD,
INC., a Nevada corporation, as borrower ("Company" or "Borrower"), and certain
Subsidiaries of the Borrower, as Guarantors, the Lenders from time to time party
thereto and the Administrative Agent;
WHEREAS, in consideration of the extensions of credit and other accommodations
of Lenders as set forth in the