Exhibit
10.1


 


AMENDMENT NO.
2 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT


 


This
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (this “Amendment No. 2”) is made and
entered into as of May 19, 2021, by and among theMaven, Inc., a Delaware corporation (the “Borrower”), the Guarantors
from time to time party to the Note Purchase Agreement (as defined below), each of the Purchasers from time to time named on Schedule
I to the Note Purchase Agreement, and BRF Finance Co., LLC, in its capacity as agent for the Purchasers (in such capacity, “Agent”).
Capitalized terms used herein without definition shall have the respective meanings assigned to such terms in the Note Purchase Agreement,
as amended hereby


 


WHEREAS,
pursuant to the Second Amended and Restated Note Purchase Agreement dated as of March 24, 2020 (as amended, restated, supplemented or
otherwise modified from time to time, the “Note Purchase Agreement”), by and among the Borrower, the Guarantors from
time to time party thereto, the Purchasers from time to time party thereto, and the Agent, the Purchasers have purchased certain Notes
from the Borrower, and the Guarantors have guaranteed the payment of the Obligations, all upon the terms and subject to the conditions
set forth therein; and


 


WHEREAS,
the Borrower has requested that the Purchasers and the Agent make certain amendments to the Note Purchase Agreement, including, among
other things, to exclude certain issuances of Equity Interests from the mandatory prepayment provisions and to reduce the interest rate
applicable to the Notes;


 


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


 


	I.	AMENDMENTS
                                            TO NOTE PURCHASE AGREEMENT ON THE AMENDMENT NO. 2 EFFECTIVE DATE:



 


Effective
as of the Amendment No. 2 Effective Date, the Note Purchase Agreement is amended as follows:


 


		(1)	Definitions.
                                            



 


Section
1.1 of the Note Purchase Agreement is amended by amending and restating the following definitions in their entirety, or adding the following
new definitions in appropriate alphabetical order, as indicated below in brackets following such definitions:


 


“Amendment
No. 2” means Amendment No. 2 to Second Amended and Restated Note Purchase Agreement, dated as of May 19, 2021, by and among
the Borrower, the Guarantors, the Purchasers and the Agent. [New Definition]


 


“Amendment
No. 2 Effective Date” has the meaning ascribed to such term in Amendment No. 2. [New Definition]


 


“First
Closing Date” means the first Closing Date (as defined in the Securities Purchase Agreement).


 




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“Note
Documents” means this Agreement, Amendment No. 1, Amendment No. 2, the Security Documents, the Notes (if any), the BRF Finance
Co. Letter of Credit, the Fee Letters, the Perfection Certificate, the Fast Pay Intercreditor Agreement, any Subordination Agreements,
the Side Letter, the Confirmation and Ratification Agreement, and all other agreements executed by or on behalf of any Note Party and
delivered concurrently herewith or at any time hereafter to or for the Agent or any Purchaser in connection with the Notes, all as amended,
restated, supplemented or modified from time to time. [Restated Definition]


 


“Securities
Purchase Agreement” means that certain Securities Purchase Agreement, dated as of May 19, 2021, by and among the Borrower and
the purchasers identified on the signature pages thereto, as amended, restated, supplemented or otherwise modified from time to time.
[New Definition]





 


	 	(2)	Amended
Provisions.









 


(a)       Amendment
to Section 2.1(C)(1). Section 2.1(C)(1) of the Note Purchase Agreement is amended by replacing “12.00%” with “10.00%”.


 


(b)       Amendment
to Section 2.1(C)(2). Section 2.1(C)(2) of the Note Purchase Agreement is amended by replacing “15.00%” with “10.00%”.


 


(c)       Amendment
to Section 2.4(A)(2). Section 2.4(A)(2) of the Note Purchase Agreement is amended and restated in its entirety as follows:


 


(2)       Prepayments
from Equity Issuances. Promptly, but in no event later than one (1) Business Day after receipt by the Borrower of cash proceeds from
any issuance of Equity Interests, the Borrower shall prepay the Obligations in an amount equal to such cash proceeds, net of underwriting
discounts and commissions and other reasonable costs associated therewith. Notwithstanding the foregoing, this Section 2.4(A)(2)
shall not apply to proceeds received from issuances of (x) Series K Preferred Stock during the ninety (90) day period commencing on October
23, 2020 (the “Series K Exception Period”) or (y) shares of Common Stock issued pursuant to the Securities Purchase
Agreement during the ninety (90) day period commencing on the First Closing Date.


 


	II.	CONDITIONS
                                            TO EFFECTIVENESS:



 


This
Amendment No. 2 shall become effective as of the first date upon which each of the following conditions is satisfied (the “Amendment
No. 2 Effective Date”):


 


(1)       Amendment
Documents. The Borrower shall have delivered or caused to be delivered to the Agent this Amendment No. 2.


 


(2)       First
Closing Date. The First Closing Date shall have occurred.


 


(3)       Representations
and Warranties. The representations and warranties set forth in the Note Purchase Agreement and the other Note Documents shall be
true and correct in all material respects (or in all respects with respect to any representation or warranty which by its terms is limited
as to materiality, in each case, after giving effect to such qualification) on and as of the Amendment No. 2 Effective Date.


 


(4)       No
Default. Both before and after giving effect to Amendment No. 2 and the transactions contemplated thereby, no event shall have occurred
or be continuing or would result from the amendments contemplated hereby that would constitute an Event of Default or a Default.


 




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(5)       No
Prohibition. No order, judgment or decree of any court, arbitrator or Governmental Authority shall purport to enjoin or restrain
Agent or any Purchaser from entering into this Amendment No. 2 or consummating the transactions contemplated hereby.


 


(6)       Fees
and Expenses. The Borrower shall have paid all documented or invoiced fees, costs and expenses due and payable on or prior to the
Amendment No. 2 Effective Date under the Note Purchase Agreement and the other Note Documents.


 


	III.	MISCELLANEOUS:



 


(1)       Ratification,
Etc. Except as expressly amended hereby, the Note Purchase Agreement and the other Note Documents and all documents, instruments
and agreements related thereto are hereby ratified and confirmed in all respects and shall continue in full force and effect. This Amendment
No. 2 and the Note Purchase Agreement shall hereafter be read and construed together as a single document, and all references in the
Note Purchase Agreement, any other Note Document or any agreement or instrument related to the Note Purchase Agreement shall hereafter
refer to the Note Purchase Agreement as amended by this Amendment No. 2. This Amendment No. 2 shall constitute a Note Document for all
purposes of the Note Purchase Agreement and the other Note Documents.


 


(2)       Reaffirmation.
Each of the Note Parties as borrower, debtor, grantor, chargor, pledgor, assignor, guarantor, or in other any other capacity in which
such Note Party grants Liens or security interests in its property, assets or undertakings or acts as a guarantor or co-obligor, as the
case may be, hereby (a) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of
the Note Documents to which it is a party and (b) to the extent such Note Party granted Liens on or security interests in any of its
property, assets or undertakings pursuant to any such Note Document as security for or otherwise guaranteed the Obligations, ratifies
and reaffirms such guarantee and grant of security interests and Liens and confirms and agrees that such security interests and Liens
shall continue in full force and effect and ranks as continuing security for the payment and discharge of the liabilities and obligations
secured or guaranteed thereunder (as the case may be) including, without limitation, all of the Obligations as amended hereby.


 


(3)       No
Waiver. Nothing contained in this Amendment No. 2 shall be deemed to (a) constitute a waiver of any Default or Event of Default that
may hereafter occur or heretofore have occurred and be continuing, (b) except as a result of the amendments expressly set forth in Section
I of this Amendment No. 2, otherwise modify any provision of the Note Purchase Agreement or any other Note Document, or (c) give
rise to any defenses or counterclaims to the Agent’s or any Purchaser’s right to compel payment of the Obligations when due
or to otherwise enforce their respective rights and remedies under the Note Purchase Agreement and the other Note Documents.


 


(4)       Release.
Each Note Party hereby remises, releases, acquits, satisfies and forever discharges the Agent and the Purchasers, their agents, employees,
officers, directors, predecessors, attorneys and all others acting on behalf of or at the direction of the Agent or the Purchasers, of
and from any and all manner of actions, causes of action, suit, debts, accounts, covenants, contracts, controversies, agreements, variances,
damages, judgments, claims and demands whatsoever, in law or in equity, which any of such parties ever had, or now has, to the extent
arising from or in connection with any act, omission or state of facts taken or existing on or prior to the Amendment No. 2 Effective
Date, against the Agent and the Purchasers, their agents, employees, officers, directors, attorneys and all persons acting on behalf
of or at the direction of the Agent or the Purchasers (“Releasees”), for, upon or by reason of any matter, cause or
thing whatsoever arising under, or in connection with, or otherwise related to, the Note Documents through the Amendment No. 2 Effective
Date. Without limiting the generality of the foregoing, each Note Party hereby waives and affirmatively agrees not to allege or otherwise
pursue any defenses, affirmative defenses, counterclaims, claims, causes of action, setoffs or other rights they have or may have under,
or in connection with, or otherwise related to, the Note Documents as of the Amendment No. 2 Effective Date, including, but not limited
to, the rights to contest any conduct of the Agent, the Purchasers or other Releasees on or prior to the Amendment No. 2 Effective Date.


 




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(5)       Governing
Law. THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT ANY SUCH OTHER NOTE DOCUMENT EXPRESSLY SELECTS THE LAW OF ANOTHER JURISDICTION AS GOVERNING LAW
THEREOF, IN WHICH CASE THE LAW OF SUCH OTHER JURISDICTION SHALL GOVERN.


 


(6)       Counterparts;
Effectiveness. This Amendment No. 2 may be executed via facsimile or other electronic method of transmission in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute one and the same instrument.


 


[Signature
Pages Follow]


 




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IN
WITNESS WHEREOF, each of the undersigned has duly executed this Amendment No. 2 to Note Purchase Agreement as of the date first set
forth above.


 


	 	NOTE
    PARTIES:
	 	 	 
	 	theMaven,
    Inc., as the Borrower
	 	 	 
	 	By:	/s/
    Douglas B. Smith
	 	Name:
    	Douglas
    B. Smith
	 	Title:
    	Chief
    Financial Officer
	 	 	 
	 	Maven
    Coalition, Inc., as a Guarantor
	 	 	 
	 	By:	/s/
    Douglas B. Smith
	 	Name:
    	Douglas
    B. Smith
	 	Title:
    	Chief
    Financial Officer
	 	 	 
	 	THESTREET,
    INC., as a Guarantor
	 	 	 
	 	By:	/s/
    Douglas B. Smith
	 	Name:
    	Douglas
    B. Smith
	 	Title:
    	Chief
    Financial Officer
	 	 	 
	 	MAVEN
    MEDIA BRANDS, LLC, as a Guarantor
	 	 	 
	 	By:	/s/
    Douglas B. Smith
	 	Name:
    	Douglas
    B. Smith
	 	Title:
    	Chief
    Financial Officer


 


[Signature
Page – Amendment No. 2 to Second Amended and Restated Note Purchase Agreement]


 




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	 	AGENT
    AND PURCHASERS:
	 	 	 
	 	BRF
    Finance Co., LLC, as
    Agent and a Purchaser
	 	 	 
	 	By:	/s/
    Bryant R. Riley
	 	Name:	Bryant
    R. Riley
	 	Title:
    	Chief
    Executive Officer


 


[Signature
Page – Amendment No. 2 to Second Amended and Restated Note Purchase Agreement]


 




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