Exhibit
10.1


 


AMENDMENT
AGREEMENT


 


This
Amendment Agreement (the “Agreement”), dated as of April 1, 2021, is made by and between SYYM LLC, as noteholder and
collateral agent (the “Holder”), MariMed, Inc. (“MariMed”) and MariMed Hemp, Inc., as co-borrowers (individually,
a “Borrower” and collectively, the “Borrowers”).


 


WHEREAS,
the Holder and the Borrowers entered into a Facility Agreement dated as of June 4, 2019 (as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time in accordance with its provisions, the “Facility Agreement”),
whereby the Borrowers issued to the Holder, and the Holder acquired from the Company, a Promissory Note due January 31, 2020,
in the aggregate original principal amount of $10,000,000 (the “Original Note”);


 


WHEREAS,
the Holder, the Borrowers and the other Loan Parties entered into an Amendment Agreement dated February 10, 2020, whereby among
other things the Lender and the Borrowers amended and restated the Original Note (the “1st A&R Note”); and


 


WHEREAS,
the Holder, the Borrowers and the other Loan Parties entered into an Amendment Agreement dated June 24, 2020, whereby among other
things the Lender and the Borrowers amended and restated the 1St A&R Note (the “2nd A&R Note”)


 


WHEREAS,
the parties now desire to amend and restate the 2nd A&R Note in the form attached hereto as Exhibit A (the “3rd
A&R Note”) subject to the terms and conditions of this Agreement.


 


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


 


	 	1.	Definitions.
    Capitalized terms used and not defined in this Agreement shall have the respective meanings given such terms in the Facility
    Agreement or the 3rd A&R Note, as applicable.
	 	 	 
	 	2.	Revocation
    of Prepayment Notice. MariMed previously delivered a Prepayment Notice (as defined in the 2nd A&R Note)
    to the Holder. MariMed hereby revokes, and Holder hereby accepts revocation of, such Prepayment Notice. 
	 	 	 
	 	3.	Certain
    Acknowledgements. 


 


	 	a.	The
    3rd A&R Note is a valid and enforceable obligation of the Borrowers and is not subject to any setoff, deduction,
    counterclaim or defense of any kind or character whatsoever.
	 	 	 
	 	b.	To
    the knowledge of each of the Borrowers and the Holder, 1) no Event of Default has occurred and is continuing under the Transaction
    Documents or the 2nd A&R Note and 2) there is no event or circumstance which, with or without the lapse of time or the
    giving of notice, or both, constitutes or would constitute an Event of Default thereunder.


 




    	 



    	 



    

 


	 	c.	The
    Holder has fully and timely performed all of its obligations and duties in compliance with the Transactions Documents and
    applicable law, and has acted reasonably, in good faith, and appropriately under the circumstances.
	 	 	 
	 	d.	In
    further consideration of the Holder’s execution of this Agreement, each Loan Party, on behalf of itself and its successors,
    assigns, parents, subsidiaries, affiliates, officers, directors, employees, agents and attorneys hereby forever, fully, unconditionally
    and irrevocably waive and release the Holder and its successors, assigns, parents, subsidiaries, affiliates, officers, directors,
    employees, attorneys and agents (collectively, the “Releasees”) from any and all claims, liabilities, obligations,
    debts, causes of action (whether at law or in equity or otherwise), defenses, counterclaims, setoffs, of any kind, whether
    known or unknown, whether liquidated or unliquidated, matured or unmatured, fixed or contingent, directly or indirectly arising
    out of, connected with, resulting from or related to any act or omission by the Holder or any other Releasee with respect
    to the Transaction Documents (collectively, the “Claims”). Each Loan Party further agrees that none of them shall
    commence, institute, or prosecute any lawsuit, action or other proceeding, whether judicial, administrative or otherwise,
    to prosecute, collect or enforce any Claim. Notwithstanding anything to the contrary set forth above, the release provided
    for in this Section 3(d) shall not apply to the obligations of the Releasees provided for in this Amendment Agreement.


 


	 	4.	Representations
    and Warranties of Borrowers. Each Borrower represents and warrants, severally and jointly, to the Holder that: 


 


	 	a.	Authorization;
    Enforcement. Each Borrower has the requisite corporate power and authority to enter into and to consummate the transactions
    contemplated by this Agreement and the 3rd A&R Note and otherwise to carry out its obligations hereunder and
    thereunder. The execution and delivery of this Agreement and the 3rd A&R Note by each Borrower and the consummation
    by each of them of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the
    part of each such Borrower and no further action is required by any Borrower in connection herewith or therewith. This Agreement,
    and the 3rd A&R Note have been (or upon delivery will have been) duly executed by each Borrower and, when delivered in
    accordance with the terms hereof and thereof, will constitute the valid and binding obligation of each such Borrower enforceable
    against each such Borrower in accordance with its terms. 



 



    	 



    	 



    

 


	 	b.	No
    Conflicts. The execution, delivery and performance by each Borrower of this Agreement and the 3rd A&R Note,
    and the consummation by each of them of the transactions contemplated hereby and thereby do not and will not: (i) conflict
    with or violate any provision of such Borrower’s certificate or articles of incorporation, bylaws or other organizational
    or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would
    become a default) under, result in the creation of any Lien upon any of the properties or assets of any Borrower, or give
    to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both)
    of, any agreement, credit facility, securities purchase agreement, debt or other instrument (evidencing a Borrower Indebtedness
    or otherwise) or other understanding to which any Borrower is a party or by which any property or asset of any Borrower is
    bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
    decree or other restriction of any court or Governmental Authority to which a Borrower is subject (including federal and state
    securities laws and regulations), or by which any property or asset of a Borrower is bound or affected.
	 	 	 
	 	c.	Absence
    of Defaults. No Event of Default has occurred or is continuing, and each Borrower has complied in all material respects
    with their respective obligations under the Transaction Documents.
	 	 	 
	 	d.	Solvency.
    Based on the consolidated financial condition of each such Borrower as of the date hereof, after giving effect to the transactions
    contemplated hereunder: (i) the fair saleable value of such Borrower’s tangible assets exceeds the amount that will
    be required to be paid on or in respect of such Borrower’s existing debts and other liabilities (including known contingent
    liabilities) as they mature, (ii) such Borrower’s assets do not constitute unreasonably small capital to carry on its
    business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital
    requirements of the business conducted by such Borrower, consolidated and projected capital requirements and capital availability
    thereof, and (iii) the current cash flow of such Borrower, together with the proceeds such Borrower would receive, were it
    to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all
    amounts on or in respect of its liabilities when such amounts are required to be paid. Such Borrower does not intend to incur
    Indebtedness beyond its ability to pay such Indebtedness as it matures (taking into account the timing and amounts of cash
    to be payable on or in respect of its Indebtedness).
	 	 	 
	 	e.	Representations
    and Warranties in Transaction Documents. The representations and warranties set forth in each Transaction Document shall,
    in each case, be true and correct in all respects with the same effect as made on the date of this Agreement and the Effective
    Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and
    correct in all material respects as of such earlier date), in each case, except as set forth in the Company’s most recent
    periodic report filed with the Commission.


 




    	 



    	 



    

 


	 	f.	Rule
    144. The Borrowers acknowledge and agree that the holding period for purposes of Rule 144 under the U.S. Securities Act
    of 1933, as amended, of the 3rd A&R Note tacks back to June 4, 2019, and, accordingly, the 3rd A&R
    Note, and any shares of common stock of MariMed issuable thereunder (“Note Shares”), shall be issued to the Holder
    free and clear of any restrictive legends or other restrictions on transfer. Borrowers will, at their own expense, obtain
    any legal opinions necessary to cause the Note and the Note Shares to be free from restrictive legends at all times. The Borrowers
    will cooperate, at the Borrowers’ expense, with Holder in providing MariMed’s transfer agent and the Holder’s
    broker with all opinions, certificates and representation letters requested by Holder. The Holder is not currently, and has
    not been at any time during the prior 3 months, an “affiliate” (within the meaning of Rule 144) of MariMed. In
    the event that the Holder becomes an “affiliate” of MariMed after the date hereof, the Holder will only sell the
    shares of common stock issued under the 3rd A&R Note in compliance with all applicable provisions of Rule 144.
    The Holder understands that MariMed will be issuing shares of common stock to the Holder without restrictive legends in reliance
    on the representations and covenants in this Section. 
	 	 	 
	 	g.	Note
    Shares. MariMed has reserved a sufficient number of its authorized and unissued shares of common stock to fulfill its
    obligation to issue Note Shares under the 3rd A&R Note. The shares of common stock of MariMed issuable pursuant
    to the 3rd A&R Note will be, when issued pursuant to the3rd A&R Note in accordance with their respective
    terms, duly authorized, validly issued, fully paid and non-assessable shares of MariMed’s common stock. 


 


	 	5.	Representations
    and Warranties of Holder. Holder represents and warrants to the Borrowers that: 


 


	 	a.	Authorization;
    Enforcement. Holder has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
    by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the
    Holder and the consummation by Holder of the transactions contemplated hereby have been duly authorized by all necessary action
    on the part of Holder and no further action is required by Holder in connection herewith. This Agreement has been (or upon
    delivery will have been) duly executed by Holder and, when delivered in accordance with the terms hereof and thereof, will
    constitute the valid and binding obligation of Holder enforceable against Holder in accordance with its terms.
	 	 	 
	 	b.	Ownership.
    Holder is the record and beneficial owner of the 2nd A&R Note free and clear of any lien or encumbrance and Holder has
    not transferred, assigned or otherwise encumbered the 2nd A&R Note in any respect.
	 	 	 
	 	c.	Security
    Interest. Holder has the unencumbered right to release the liens as contemplated by Section 8 hereof and it has not transferred
    or assigned its rights in and to the security covered in any manner or respect. 


 


	 	6.	Deliveries.
    In connection with the transactions contemplated by this Agreement, the Borrowers shall deliver to the Holder the following:
    


 


	 	a.	on
    the date of this Agreement, a duly executed PDF copy of this Agreement and the 3rd A&R Note (collectively,
    the “Amendment Documents”) (and promptly after the date hereof the Borrower’s shall deliver “wet ink”
    originals of the Amendment Documents to the Holder); and 


 




    	 



    	 



    

 


	 	b.	on
    the date of this Agreement, satisfactory evidence that all corporate and other proceedings that are necessary in connection
    with the Amendment Documents have been taken. 


 


	 	7.	Intentionally
    Omitted . 
	 	 	 
	 	8.	Release
    of Liens. The Holder shall promptly after the date of this Agreement release any liens that secured the Borrower’s
    obligations under the 2nd A&R Note. The 3rd A&R Note shall be a general, unsecured obligation
    of the Borrowers. The Holder agrees that at any time and from time to time, the Holder will promptly execute and deliver all
    further instruments and documents, obtain such agreements from third parties, and take all further action, that may be necessary
    or desirable, or that the Borrowers may reasonably request, in furtherance of the release of the liens as provided above.
	 	 	 
	 	9.	Transaction
    Documents. Each Amendment Document is a Transaction Document. The Amendment Documents, together with the other Transaction
    Documents, are the entire agreement among the parties with respect to the subject matter hereof. 
	 	 	 
	 	10.	No
    Modification. Except as set forth in the Amendment Documents, nothing shall be deemed or construed to amend, supplement
    or modify the other Transaction Documents or otherwise affect the rights, remedies and/or obligations of any party thereto,
    all of which remain in full force and effect. 
	 	 	 
	 	11.	Successors
    and Assigns; Survival. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto, and
    each of their respective successors and assigns. The representations and warranties of the Borrowers and the Holder shall
    survive the consummation of the transactions contemplated by this Agreement.
	 	 	 
	 	12.	Governing
    Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The parties
    submit to the non-exclusive jurisdiction of the state courts located in New York County, New York for any action, proceeding
    or dispute arising out of this Agreement.
	 	 	 
	 	13.	Counterparts.
    This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same agreement, and
    any party hereto may execute this Agreement by signing and delivering one or more counterparts. Delivery of an executed counterpart
    of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this
    Agreement.
	 	 	 
	 	14.	Announcement.
    The Company shall file a Form 8-K announcing the terms of this Agreement and filing this Agreement as an exhibit thereto on
    or before 5:30 p.m. (local time in New York, New York) on the Business Day after the date of this Agreement. Following the
    filing of such Form 8-K the Holder shall not be deemed to be in possession of any material, non-public information of the
    Borrowers. 


 


[SIGNATURE
PAGE FOLLOWS]


 




    	 



    	 



    

 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


 


	MariMed,
    Inc.	 
	 	 	 
	By	 	 
	Name:
    	      	 
	Title:
    	 	 


 


	MariMed
    Hemp, Inc.	 
	 	 	 
	By	      	 
	Name:
    	 	 
	Title:
    	 	 


 


	SYYM
    LLC	 
	 	 	 
	By	 	 
	Name:
    	 	 
	Title: