Exhibit
10.1


 


THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933.


 


NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THIS NOTE, THE REPAYMENT OF ALL INDEBTEDNESS EVIDENCED HEREBY AND THE EXERCISE OF ANY RIGHT OR REMEDY
HEREUNDER BY THE HOLDER HEREOF ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THAT CERTAIN INTERCREDITOR AND SUBORDINATION AGREEMENT,
DATED AS OF OCTOBER 13, 2021 (AS AMENDED BY THAT CERTAIN FIRST AMENDMENT TO INTERCREDITOR AND SUBORDINATION AGREEMENT, DATED AS OF MARCH
8, 2022, THE “INTERCREDITOR AGREEMENT”), BY AND BETWEEN EMPERY TAX EFFICIENT, LP, MUSCLEPHARM CORPORATION AND RYAN
DREXLER. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SUCH INTERCREDITOR AGREEMENT AND THIS NOTE, THE TERMS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL.


 


UNSECURED
REVOLVING PROMISSORY NOTE






March
8, 2022


 


For
Value Received, MusclePharm Corporation,
a Nevada corporation (“the Company”), hereby unconditionally promises to pay to the order of Ryan Drexler
(“Lender”), in lawful money of the United States of America and in immediately available funds, the aggregate
unpaid principal amount of all Advances (as defined below) (the “Revolving Loan”), together with accrued and
unpaid Interest (as defined below) thereon and any Costs of Collection (as defined below), due and payable on the dates and in the manner
set forth below in this Unsecured Revolving Promissory Note (the “Note”).


 


1.
Advances. The Lender may, in its sole discretion, make one or more advances (each, an “Advance,” and collectively,
the “Advances”) to the Company, and the Company may, to the extent that the Lender permits in his sole discretion,
borrow funds from the Lender hereunder. While the decision to make any Advance is at all times within the sole discretion of the Lender,
whether the limitation set forth in clause 1(c) below is satisfied or not, it is understood and agreed by the Company that, as further
limitations on the making of Advances by the Lender:


 


(a)
each request for an Advance shall be made by the Company in writing, delivered to the Lender at least three (3) business days prior
to the requested date of such Advance, and shall specify the date of such Advance and the amount of such Advance,


 


(b)
requests may only be made if no Event of Default (as defined below) has occurred and is continuing,


 




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(c)
each request shall be in the amount of at least ten thousand dollars (US$10,000) and shall be in thousand-dollar increments, and


 


(d)
the proceeds of Advances shall be used by the Company solely to finance the production of orders made by Costco Wholesale Corporation
or any of its affiliates or subsidiaries, as obligor of accounts receivables with respect to such orders (the “Costco Accounts
Receivables”).


 


The
Lender shall, and is hereby authorized to, record on the schedule attached hereto the date and amount of each Advance and the date and
amount of each principal payment hereunder, provided, that, the failure of the Lender to record any Advance shall have
no effect on the obligation of the Company to repay the Advance or to pay any other amount hereunder.


 


2.
Interest. Simple interest shall accrue on the outstanding principal amount of each Advance from the date of such Advance until payment
of such Advance at a rate of eighteen percent (18%) per annum (“Interest”), compounding annually. Interest
shall be calculated on the basis of a 365-day year for the actual number of days elapsed.


 


3.
Costs of Collection. If an Event of Default (as defined below) has occurred, the Company shall pay the reasonable costs and expenses
(including reasonable attorney’s fees) incurred by the Lender in the enforcement of the Lender’s rights hereunder (“Costs
of Collection”).


 


4.
Repayment.


 


(a)
Each Advance made and not otherwise repaid, if any, all accrued Interest related thereto not otherwise paid, if any, and all accrued
Costs of Collection related thereto not otherwise paid, if any (each such amount, the “Repayment Amount”),
or at the sole discretion of the Lender, any portion of the Repayment Amount, shall be due and payable on the earlier of (a) the Maturity
Date, as defined below, and (b) three (3) days following any demand of the Lender (each such date, a “Repayment Date”).
Demand for payment hereunder shall be made by notice in writing, delivered by overnight courier to the undersigned at 6728 W. Sunset
Rd., Suite 130, Las Vegas, NV 89118, or sent by email to Sabina.Rizvi@musclepharm.com or by fax to 800-490-7165 (with such demand being
deemed made and effective one (1) business day after being sent via overnight courier, and effective on the same day it was sent (or,
if not sent on a business day, on the following business day) if sent via email or fax), setting out details of the amount outstanding
and the appropriate method of payment.


 


(b)
The Company shall be entitled to prepay any outstanding principal amount of any Advances without premium or penalty following at
least one (1) day’s advance written notice to the Lender, provided, that, any such prepayment shall be accompanied
by a payment by the Company of all accrued and unpaid Interest and Costs of Collection on such prepaid principal.


 


(c)
Unless earlier due and payable as provided in Section 4(a), each Repayment Amount shall be due and payable on the earliest of (i)
the receipt of collections on the Costco Account Receivable in connection with the Advance related to such Repayment Amount, (ii) immediately
upon receipt by the Company of a Notice of Acceleration (as defined below) from the Lender as provided by Section 8(a), and (iii) immediately
upon the occurrence of an Event of Default of the type described in Section 7(b) or (c), as provided by Section 8(b) (the earliest such
date being the “Maturity Date”).


 




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(d)
All payments by the Company under this Note (including prepayments) shall be made without set-off or counterclaim and be free and
clear and without any deduction or withholding for any taxes or fees of any nature whatever, unless the obligation to make such deduction
or withholding is imposed by law. All payments hereunder shall be made in cash in immediately available U.S. Dollars.


 


(e)
The Company and Lender agree that the Company’s obligations under the Note with respect to, among other things, right of payment
to Lender are subordinate to the payment obligations of the Company pursuant to the Original Issue Discount Senior Secured Notes, dated
as of October 13, 2021 (the “Existing Notes”), and any subordination agreement related thereto, and, among other things,
no payments shall be made by Company under the Note if the Company is in default under the Existing Notes.


 


5.
Application of Payments. Payments made hereunder shall be applied, first, to accrued but unpaid Costs of Collection, if any; second,
to accrued but unpaid Interest, if any; third to unpaid principal on the Revolving Loan, if any (beginning with the earliest Advance
for which principal remains unpaid and continuing in chronological order to subsequent Advances). Any excess amounts remaining after
such application shall be returned to the Company within three (3) business days.


 


6.
Reserved.


 


7.
Default. There shall exist an event of default hereunder (an “Event of Default”) if


 


(a)
the Company fails to repay or pay any and all unpaid principal, accrued and unpaid Interest, accrued and unpaid Costs of Collection
and all other amounts owing under this Note when due and payable pursuant to the terms of this Note unless such failure is cured within
three (3) days of the date the Lender has given notice of such breach to the Company;


 


(b)
the Company or any of its subsidiaries files any petition or action for relief under any bankruptcy, reorganization, insolvency or
moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any general assignment
for the benefit of creditors;


 


(c)
an involuntary petition is filed against the Company or any of its subsidiaries (unless such petition is dismissed or discharged
within sixty (60) days) under any bankruptcy statute or similar law now or hereafter in effect, or a custodian, receiver, trustee, assignee
for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company;


 


(d)
the Company breaches any other material term of this Note (unless, in the case of any curable material breach, such material breach
is cured within thirty (30) days of the earlier of the date on which (x) the Lender has given notice of such breach to the Company and
(y) the Company has actual knowledge of such breach);


 




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(e)
the Company amends or modifies the terms of any existing indebtedness in a manner that increases the principal amount thereof or
the interest rate applicable thereto, accelerates the maturity of the obligations thereunder or otherwise adversely affects the Lender;
provided, that, the foregoing shall not constitute an Event of Default if undertaken, caused, approved, consented to or
voted in favor of by the Lender in his capacity as an employee, officer or director of the Company;


 


(f)
a final judgment or judgments for the payment of money aggregating in excess of $1,000,000 that are not covered by insurance or an
indemnity from a creditworthy party are rendered against the Company and/or any of its subsidiaries and which judgments are not, within
thirty (30) days after the entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within thirty (30) days
after the expiration of such stay;


 


(g)
the Company fails to pay, when due, giving effect to any applicable grace period, any payment with respect to any funded indebtedness
in excess of $500,000 due to any third party (other than, with respect to unsecured funded indebtedness only, payments contested by the
Company in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in
accordance with U.S. generally accepted accounting principles) or is otherwise in breach or violation of any agreement for monies owed
or owing in an amount in excess of $500,000, other than (i) unsecured trade obligations in the ordinary course of business, which breach
or violation permits the other party thereto to declare a default or otherwise accelerate amounts due thereunder or (ii) matters disclosed
in the Company’s securities filings; provided, that, the foregoing shall not constitute an Event of Default if undertaken,
caused, approved, consented to or voted in favor of by the Lender in his capacity as an employee, officer or director of the Company;
or


 


(h)
there exists any circumstances or events that would, with or without the passage of time or the giving of notice, result in a default
or event of default under any agreement binding the Company or any subsidiary, which default or event of default would or is likely to
have a material adverse effect on the business, assets, operations or financial condition of the Company and its subsidiaries, taken
as a whole; provided, that, the foregoing shall not constitute an Event of Default if such circumstances or events are
undertaken, caused, approved, consented to or voted in favor of by the Lender in his capacity as an employee, officer or director of
the Company.


 


8.
Acceleration and Remedies.


 


(a)
Upon the occurrence and during the continuance of any Event of Default described in clause (a) or clauses (d) through (h) of Section
7 of this Note, the Lender shall be entitled to accelerate the entire indebtedness hereunder, including all principal, all Interest and
all Costs of Collection, which shall become due and payable following receipt by the Company of written notice of the occurrence of said
Event of Default (“Notice of Acceleration”).


 




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(b)
Upon the occurrence and during the continuance of any Event of Default described in clauses (b) or (c) of Section 7 of this Note,
the entire indebtedness hereunder, including all principal, all Interest, and all Costs of Collection, shall be automatically accelerated,
and shall be immediately due and payable, without any demand, notice, or other action of the Lender or any other person or entity.


 


(c)
Notwithstanding anything to the contrary in this Note or any other agreement, instrument or document, upon the occurrence and during
the continuance of any Event of Default, the Lender may exercise any and all rights and remedies it may have under this Note or applicable
law.


 


9.
[Reserved].


 


10.
Waivers. The Company, for itself and its legal representatives, successors and assigns, hereby expressly waives demand, protest,
presentment, notice of dishonor, notice of acceptance, and notice of protest, and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note.


 


11.
Transfer; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective
successors and assigns of the Company and the Lender. Notwithstanding the foregoing, the Lender may not assign, pledge or otherwise transfer
this Note without the prior written consent of the Company. Subject to the preceding sentence, this Note may be transferred only upon
surrender of the original Note for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument of transfer
in form satisfactory to the Company. Thereupon, a new note for the same principal amount and interest will be issued to, and registered
in the name of, the transferee. Interest and principal are payable only to the registered holder of this Note.


 


12.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Nevada (without giving effect
to any conflict of laws principles that would require application of the laws of another jurisdiction).


 


13.
Jurisdiction. Each of the Company and the Lender irrevocably submits to the jurisdiction of the courts of the State of Nevada and
of the United States sitting in the State of Nevada, and of the courts of its own corporate or individual domicile with respect to actions
or proceedings brought against it as a defendant, for purposes of all proceedings. Each of the Company and the Lender irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any proceeding and
any claim that any proceeding has been brought in an inconvenient forum. Any process or summons for purposes of any proceeding may be
served on the Company or the Lender, as applicable, by mailing a copy thereof by registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notices under this Note.


 


14.
Waiver of Jury Trial. Each of the Company and the Lender hereby irrevocably waives any and all right to trial by jury in any proceeding.


 


15.
Notices. Any notice required or permitted by this Note shall be in writing and shall be deemed sufficient when delivered personally
or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited
in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address
or fax number as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature
page, at the most recent address set forth in the Company’s books and records; provided, that, any notice to the
Company by the Lender also shall be provided to the independent directors of the Board.


 




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16.
Amendments and Waivers. Any term of this Note may be amended only with the written consent of the Company and the Lender. Any amendment
or waiver effected in accordance herewith shall be binding upon the Company, the Lender and each transferee of this Note.


 


17.
Entire Agreement. This Note constitutes the entire agreement between the Company and the Lender pertaining to the subject matter
hereof, and any and all other written or oral agreements existing between the Company and the Lender are expressly canceled.


 


18.
Counterparts. This Note may be executed in any number of counterparts, each of which will be deemed to be an original and all of
which together will constitute a single agreement.


 


19.
Loss of Note. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Note
or any Note exchanged for it, and indemnity satisfactory to the Company (in case of loss, theft or destruction) or surrender and cancellation
of such Note (in the case of mutilation), the Company will make and deliver in lieu of such Note a new Note of like tenor.


 


20.
Interest Rate Limitation. Notwithstanding anything to the contrary contained herein, the interest paid or agreed to be paid under
this Note shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).
If the Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal
amount remaining owed under this Note or, if it exceeds such unpaid principal amount, refunded to the Company. In determining whether
the interest contracted for, charged, or received by the Lender exceeds the Maximum Rate, the Lender may, to the extent permitted by
applicable law, (i) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate and spread in equal or unequal parts the total amount
of interest throughout the contemplated term of this Note.


 


21.
Indemnification. The Company shall, to the fullest extent permitted by law, indemnify (but only to the extent of and out of Company
assets) the Lender against all reasonable expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Lender in connection with any claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, before or by any court or any administrative or legislative body or authority, in which the Lender is
involved, as a party or otherwise, or with which the Lender may be threatened, arising in connection with this Note (each, an “Action”),
except to the extent the same has been finally adjudicated to constitute fraud, gross negligence or willful misconduct of the Lender
or a breach by the Lender of this Note. Promptly after receipt by the Lender of notice of the commencement or threatened commencement
against it of any third party Action, the Lender will notify the Company. The Company will be entitled to assume the defense of the Action
unless the Lender shall have reasonably concluded that a conflict may exist between the Company and the Lender in conducting the defense
of the Action. If the Company assumes the defense of any Action in accordance with the provisions of this Section, it will not be liable
to the Lender for any legal or other expenses subsequently separately incurred by the Lender in connection with the defense of such Action.
The Company shall not be liable for any settlement of a third-party Action effected without its written consent, which consent may not
be unreasonably withheld.


 




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22.
Severability. In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of this Note.


 


23.
Publication. The Company shall issue a widely disseminated press release by 9:30 a.m. (New York City time) on the trading day of
the execution of this Note (or, if the date of execution is not a trading day, on the immediately following trading day, that discloses
the material terms of the transactions contemplated by this Note and the intercreditor agreement.


 


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IN
WITNESS WHEREOF, the undersigned have duly executed this Unsecured Revolving Promissory Note as of the date indicated herein.


 


	 	MusclePharm
    Corporation
	 	 	 
	 	By:	/s/
    Sabina Rizvi
	 	Name:
    	Sabina
    Rizvi
	 	Title:	Chief
    Financial Officer


 


	Acknowledged
    and Agreed:	 
	 	 
	Ryan
    Drexler	 
	 	 
	/s/
    Ryan Drexler	 


 




    	 



    	 



    

 


SCHEDULE
OF LOAN AND PAYMENTS OF PRINCIPAL

TO UNSECURED REVOLVING PROMISSORY NOTE 

OF MUSCLEPHARM CORPORATION

DATED __________, 2022


 


	Principal

    Amount
    of

    Advance
	 	

    Date
	 	Principal

    Amount

    Paid
	 	

    Unpaid

    Balance