Exhibit
10.1


 





SECOND
AMENDMENT TO NOTE PURCHASE AGREEMENT


 


This
Second Amendment to Note Purchase Agreement (this “Amendment”), effective as of November 2, 2017, by and among
uSell.com, Inc., a Delaware corporation (“USELL”), BST Distribution, Inc., a New York corporation (“BST”),
We Sell Cellular LLC, a Delaware limited liability company (“WE SELL” together with uSell and BST, each a “Company”
and collectively the “Companies”), the Purchaser party hereto (the “Purchaser”) and ****************
as agent for the Purchaser and the other Purchasers from time to time party to the Agreement (as hereafter defined) (the “Agent”
and together with such Purchasers, the “Creditor Parties”).


 


WHEREAS,
the Companies and Creditor Parties are parties to a Note Purchase Agreement dated as of January 13, 2017 (as amended from time
to time, the “Agreement”).


 


WHEREAS,
the Companies and the Creditor Parties wish to amend the Agreement on the terms and subject to the conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the foregoing, and of other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the parties hereto agree as follows:


 


1.          Capitalized
Terms. Capitalized terms not otherwise defined in this Amendment shall have the meaning ascribed to them in the Agreement.


 


2.          Acknowledgment
of Liabilities.


 


(a)           Each
Company hereby acknowledges that it is unconditionally liable to Creditor Parties under the Agreement and the Related Agreements
to which it is a party for the payment of all Liabilities, and no Company has any defenses, counterclaims, deductions, credits,
claims or rights of setoff or recoupment with respect to the Liabilities.


 


(b)           Each
Company hereby ratifies and confirms its obligations under the Agreement and the Related Agreements to which it is a party and
hereby acknowledges and agrees that the Agreement and the Related Agreements to which it is a party remain in full force and effect.


 


3.          Amendments
Agreement. Subject to satisfaction of the conditions of effectiveness set forth in Section 5 of this Amendment, the Agreement
is hereby amended as follows:


 


(a)           The
“Outstanding Principal Amount of Loan/EBITDA” covenant set forth Section 8.23(a) of the Agreement is hereby deleted
and Section 8.23(a) is amended and restated in its entirety to provide as follows:


 


“(a)       Operating
Margin. Commencing with the fiscal quarter ending December 31, 2017 and for each fiscal quarter ending thereafter, Companies
will not permit Gross Profit (as hereafter defined) as of the end of such fiscal quarter to be less than two percent (2%) of Companies’
revenue (determined in accordance with GAAP) for such fiscal quarter. For purposes hereof, the term “Gross Profit”
shall mean an amount equal to (i) revenue received by Companies during the applicable period, minus (ii) the cost of goods
sold during the applicable period, including all direct sales and marketing expenses incurred by Companies during such period,
all to be determined in accordance with GAAP and in a manner consistent with Companies’ past practices and otherwise supported
by calculations acceptable to Agent.”


 






     


     


    

 


(b)           Section
8.23(c) of the Agreement is hereby amended and restated in its entirety to provide as follows:


 


“(c)       Intentionally
Omitted.”


 


(c)           Section
8.30 of the Agreement is hereby amended and restated in its entirety to provide as follows:


 


“8.30.  
Equity Raise. On or prior to December 31, 2017, Companies shall (i) deliver to Agent evidence, reasonably satisfactory
in all respect to Agent, of USELL’s receipt of not less than $1,000,000 in cash proceeds from an equity raise occurring
on or after October 31, 2017 and (ii) cause to be remitted to the Agent Controlled Account from the cash proceeds of such equity
raise an amount equal to $310,000.


 


(d)           The
definition of “Applicable Net Debt” set forth in Section 8.23(b) of the Agreement is hereby amended and restated in
its entirety to provide as follows:


 


“Applicable
Net Debt” means, at the date of determination, the outstanding principal amount of the Notes less (Y) cash and
cash equivalents on deposit in the Agent Controlled Account plus (Z) the cash proceeds, if any, of the equity raise contemplated
by Section 8.30 of this Agreement which are remitted to and are on deposit in the Agent Controlled Account in accordance with
clause (ii) of Section 8.30.”


 


4.          Representations
and Warranties. Each Company hereby represents and warrants to Purchasers and Agent that:


 


(a)           The
execution, delivery and performance of this Amendment (i) have been duly authorized by each Company, (ii) are not in contravention
of the certificate of incorporation, bylaws, certificate of formation or operating agreement of any Company or of any indenture,
agreement or undertaking to which any Company is a party or by which any Company is bound and (iii) are within each Company’s
powers.


 


(b)           This
Amendment is the legal, valid and binding obligation of each Company, enforceable in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to creditors’ rights generally
or by equitable principles.


 






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(c)           The
representations and warranties of each Company contained in the Agreement and the Related Agreements are and will be true, correct
and complete in all respects on and as of the date hereof to the same extent as though made on and as of such date, except to
the extent that such representations and warranties specifically relate to an earlier date, in which case they were true, correct
and complete as of such earlier date.


 


5.          Conditions
of Effectiveness. This Amendment shall become effective upon receipt by Agent (unless waived by Agent in writing) of the following,
each in form and substance satisfactory to Agent in its sole discretion: (a) this Amendment executed by each Company and each
Guarantor, (b) an original executed Amended and Restated Secured Term Note in the form attached hereto as Exhibit A, (c) corporate
resolutions for each Company authorizing the transactions contemplated by this Amendment and (d) payment by Companies of all fees
and expenses incurred by Agent in connection with the transactions contemplated by this Amendment, including, without limitation,
the fees of *************, counsel to Agent and Purchasers.


 


6.          Effect
on Note Purchase Agreement.


 


(a)           Upon
the effectiveness of this Amendment, each reference in the Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of like import shall mean and be a reference to the Agreement as amended hereby.


 


(b)           Except
as specifically amended herein, the Agreement and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed.


 


(c)        
  The execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision
of the Agreement, or any other documents, instruments or agreements executed and/or delivered under or in connection therewith.


 


7.          Miscellaneous.
Section 13 of the Agreement is incorporated by reference into this Amendment without the necessity of fully repeating it.


 






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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers
as of the date first set forth above.


 


	 	COMPANIES:
	 	 	 
	 	USELL.COM,
                                         INC.
	 	 	 
	 	By:	 
			Name: Nikhil Raman
	 	 	Title: Chief Executive Officer



 


	 	BST
                                         DISTRIBUTION, INC.
	 	 	 
	 	By:	 
			Name: Brian Tepfer
	 	 	Title: Chief Executive Officer



 


	 	WE
                                         SELL CELLULAR LLC
	 	 	 
	 	By:	 
			Name: Nikhil Raman
	 	 	Title: Manager



 




     


     


    

 


	 	PURCHASER:
	 	 	 
	 	By:	 
			Name:
	 	 	Title:



 


	 	AGENT:
	 	 
	 	By:	 
			Name:
	 	 	Title:



 






     


     


    

 





GUARANTOR
CONSENT:


 


	By:	 	 
		Name:	
	 	Title: