Exhibit
10.2


 


FIRST
AMENDMENT


TO
INTERCREDITOR AND SUBORDINATION AGREEMENT


 


This
FIRST AMENDMENT TO INTERCREDITOR AND SUBORDINATION AGREEMENT (this “Amendment”), dated as of March 8, 2022, is entered
into by and between Ryan Drexler, an individual (“Subordinated Creditor”), MusclePharm Corporation,
a Nevada corporation (the “Borrower”) and Empery Tax Efficient, LP, as representative on behalf of the buyers
party to the Securities Purchase Agreement (as defined in the Intercreditor Agreement referenced below) (“Senior Creditor”).
Terms used herein without definition shall have the definition assigned to such terms in the Intercreditor Agreement referenced below.


 


RECITALS


 


WHEREAS,
Subordinated Creditor desires to extend credit to the Borrower and the Borrower desires to borrow from Subordinated Creditor, pursuant
to the terms of the Unsecured Revolving Promissory Note dated as of the date hereof in the form attached hereto as Exhibit A (the
“Promissory Note” and such indebtedness and obligations to Subordinated Creditor arising under the Promissory Note
(whether now existing or hereafter arising), collectively, the “Promissory Note Debt”);


 


WHEREAS,
the parties hereto desire to amend that certain Intercreditor and Subordination Agreement, dated as of October 13, 2021 (the “Intercreditor
Agreement”), among Subordinated Creditor, the Borrower and Senior Creditor, in accordance with the terms herein;


 


NOW,
THEREFORE, in consideration of the covenants made hereunder, and other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:


 


SECTION
1. Amendments to Intercreditor Agreement. The Intercreditor Agreement shall be amended as follows:


 


(a)
Section 3 of the Intercreditor Agreement is hereby amended and restated as follows:


 


“All
loans, advances, debts, liabilities, obligations, debit balances, covenants and duties at any time or times owed by Borrower or any of
its subsidiaries to Subordinated Creditor, including all obligations of the Borrower under Unsecured Revolving Promissory Note, dated
as of March 8, 2022 (the “Permitted Note”), or to any Person owned or controlled by Subordinated Creditor under the
Subordinated Notes, the Subordinated Security Agreement, the other Subordinated Loan Documents or otherwise (collectively, the “Subordinated
Debt”), are subordinated in right of payment to (a) all loans, advances, debts, liabilities, obligations, debit balances, covenants
and duties at any time or times owed by Borrower or any of its subsidiaries to Senior Creditor under the Securities Purchase Agreement,
the Notes or any other Transaction Document (together with the Securities Purchase Agreement and the Notes, collectively, the “Senior
Loan Documents”), whether now or hereafter created, incurred or arising, and whether direct or indirect, absolute or contingent,
secured or unsecured, primary or secondary, joint or several, liquidated or unliquidated, due or to become due, now existing or hereafter
arising, (b) all loans made or credit extended by Senior Creditor to Borrower or any of its subsidiaries during the pendency of any Insolvency
Proceeding (as defined below) of Borrower or any of its subsidiaries, (c) all interest, fees, charges, expenses and attorneys’
fees for which Borrower or any of its subsidiaries is now or hereafter becomes liable to pay to Senior Creditor under the Senior Loan
Documents or by law (including all interest, legal fees and other charges that accrue or are incurred in connection with any of the Senior
Debt (as defined below) during the pendency of any Insolvency Proceeding of Borrower or any of its subsidiaries, whether or not Senior
Creditor is authorized by 11 U.S.C. Section 506 or otherwise to claim or collect any such interest, legal fees or other charges from
Borrower or any of its subsidiaries), (d) any renewals, extensions, replacements or refinancings of any of the foregoing and (e) all
costs and expenses at any time incurred by Senior Creditor in connection with its enforcement of rights or exercise of remedies under
any of the Senior Loan Documents or applicable law or in equity to collect any of the Senior Debt, enforce any lien or security interest
of Senior Creditor or otherwise enforce any provisions of any of the Senior Loan Documents, or protect or preserve any of the Collateral
or defend any lien or security interest of Senior Creditor therein against the claims of third parties (clauses (a) through (e) above,
collectively, the “Senior Debt”). As used herein, “Insolvency Proceeding” means (x) any case, action
or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (y) any general assignment for the benefit of creditors, formal or informal moratorium,
composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial
portion of its creditors, in each case, undertaken under the Bankruptcy Code or other applicable law. For purposes of this Agreement,
reference in this Agreement to (x) any obligations or liabilities owed to the Senior Creditor shall be deemed include all obligations
and liabilities owed to all holders of Notes, and (y) any claims and interests of the Senior Creditor shall include claims and interests
all holders of Notes.”


 




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(b)
Section 4 of the Intercreditor Agreement is hereby amended and restated as follows:


 


“Subordinated
Creditor will not demand or receive from Borrower or any of its subsidiaries (and neither Borrower nor any of its subsidiaries will pay
to Subordinated Creditor) all or any part of the Subordinated Debt, by way of payment, prepayment, setoff, lawsuit or otherwise, nor
will Subordinated Creditor exercise any right or remedy under any Subordinated Loan Document or with respect to any Collateral, or any
other right or remedy available at law or equity, nor will Subordinated Creditor commence, or cause to commence, prosecute or participate
in any administrative, legal or equitable action against Borrower or any of its subsidiaries, until (a) the Senior Debt has been indefeasibly
paid in full in cash, (b) the Transaction Documents have been terminated and (c) no claims, losses or liabilities related to the Senior
Debt to which Senior Creditor is entitled to indemnification or reimbursement by Borrower or any of its subsidiaries, whether pending
or threatened, remain unresolved (such events described in clauses (a) through (c) above, collectively, “Full Payment”);
provided that the Borrower may make Permitted Note Payments to Subordinated Creditor. In furtherance of the foregoing: (r) neither
Borrower nor any of its subsidiaries shall, directly or indirectly, make any payment on account of the Subordinated Debt (other than
(i) any salary, executive compensation, employee benefits or reimbursement of reasonable expenses, in each case in the ordinary course
of business and consistent with past practice, that is owed by Borrower or any of its subsidiaries to Subordinated Creditor in Subordinated
Creditor’s capacity as a director, officer or employee of the Borrower or (ii) the Permitted Note Payments); (s) Subordinated Creditor
shall not demand, collect or accept from Borrower or any of its subsidiaries, or any other Person, any payment on account of the Subordinated
Debt or any part thereof, other than the Permitted Note Payments; (t) Subordinated Creditor shall not accelerate the maturity or payment
of any of the Subordinated Debt, or assert, collect, enforce or seek to enforce any right or remedy with respect to the Subordinated
Debt or any part thereof; (u) Subordinated Creditor, the Borrower and its subsidiaries shall not permit the “Maturity Date”
(as defined in the Subordinated Loan Documents) or otherwise permit the maturity of any of the Subordinated Debt to be earlier than the
date that is 181 days after the latest “Maturity Date” (as defined in the Notes, as such term may be amended and/or extended
from time to time) (the “Outside Maturity Date”), and the Borrower and Subordinated Creditor hereby agree that to
the extent any “Maturity Date” (as defined in the Subordinated Loan Documents) occurs on or earlier than the Outside Maturity
Date, such “Maturity Date” shall be automatically, and without any further consent or action of any Person, extended to a
date that is at least one day after the Outside Maturity Date; (v) Subordinated Creditor shall not exchange, set off, release, convert
to equity or otherwise discharge any part of the Subordinated Debt; (w) Subordinated Creditor shall not hereafter give any subordination
in respect of the Subordinated Debt or transfer or assign any of the Subordinated Debt to any Person unless the transferee or assignee
thereof first agrees in writing with Senior Creditor to be bound by the terms of this Agreement; (x) neither Borrower nor any of its
subsidiaries shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Debt, and Subordinated
Creditor will not receive any such writing, except upon the prior written approval of Senior Creditor or at the request of and in the
manner requested by Senior Creditor; (y) Subordinated Creditor shall not commence or join with any other creditor of Borrower or any
of its subsidiaries in commencing any Insolvency Proceeding against Borrower or any of its subsidiaries; and (z) neither Subordinated
Creditor nor Borrower or any of its subsidiaries otherwise shall take or permit any action prejudicial to or inconsistent with Senior
Creditor’s priority position over Subordinated Creditor that is created by this Agreement. Notwithstanding any other provision
herein, prior to Full Payment, all accrued and unpaid interest under the Subordinated Loan Documents or in connection with the Subordinated
Debt may be capitalized and become part of the applicable principal balance when such interest becomes payable by the Borrower or any
of its subsidiaries to the Subordinated Creditor (the “Deferred Interest Payments”). The Deferred Interest Payments
shall become due and payable by the Borrower (or, if applicable, its subsidiaries) to the Subordinated Creditor immediately after the
occurrence of Full Payment.” As used herein, “Permitted Note Payments” means, at any time no Event of Default
(as defined in the Security Agreement), Event of Default (as defined in the Permitted Note) or Insolvency Proceeding has occurred and
is continuing, the repayment by the Borrower to the Subordinated Creditor of the principal portion of the Permitted Note from the proceeds
of Costco Account Receivables in connection with the Advance (as defined in the Permitted Note) directly related to such Costco Account
Receivables pursuant to the terms therein. For the avoidance of doubt, the Permitted Note Payments shall not be applicable to the repayment
of interest, fees, expenses or other amounts under the Permitted Note.”


 




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(c)
Section 8 of the Intercreditor Agreement is hereby amended by replacing the second sentence thereof with the following:


 


“Subordinated
Creditor shall not amend, waive or otherwise modify the provisions of any Subordinated Loan Document without the prior written consent
of the Senior Creditor (other than to reduce the rate of interest or extent the time for payment).”


 


SECTION
2. Conditions to Effectiveness of this Amendment. This Amendment shall become effective upon the receipt by Senior Creditor of
counterparts of this Amendment executed by (i) the Borrower, (ii) Subordinated Creditor and (iii) Senior Creditor.


 


SECTION
3. Representations and Warranties. The Borrower hereby represents and warrants as follows:


 


(a)
Authorization; No Contravention. The Borrower has all requisite power and authority to execute, deliver and perform its obligations
under this Amendment. The execution, delivery and performance by the Borrower of this Amendment, and the consummation of the transactions
contemplated hereby, are within its corporate or other powers, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of its charter or bylaws, (b) conflict with or result in any breach or contravention
of, any material order, injunction, writ or decree of any governmental authority or any arbitral award to which the Borrower or its property
is subject; or (c) violate any law in any material respect.


 


(b)
Binding Effect. This Amendment has been duly executed and delivered by the Borrower and this Amendment constitutes, a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforceability
may be limited by debtor relief laws and by general principles of equity. The Intercreditor Agreement, as amended by this Amendment constitutes,
a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such
enforceability may be limited by debtor relief laws and by general principles of equity.


 


(c)
Government Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any governmental authority or any other person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, the Borrower of this Amendment, or for the consummation of the transactions contemplated hereby,
except for (i) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken,
given or made and are in full force and effect and (ii) those approvals, consents, exemptions, authorizations or other actions, notices
or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.


 




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SECTION
4. Validity of Obligations and Liens.


 


(a)
Validity of Obligations. The Borrower acknowledges and agrees that, both before and after giving effect to this Amendment, Holdings,
the Borrower indebted to the Buyers (as defined in the Security Agreement) for the Obligations (as defined in the Security Agreement),
and the Borrower hereby ratifies and reaffirms the validity, enforceability and binding nature of such Obligations (as defined in the
Security Agreement).


 


(b)
Validity of Guarantees. The Borrower hereby (i) acknowledges and agrees to the terms of this Amendment and (ii) confirms and agrees
that, after giving effect to this Amendment, its guarantee under that certain Guarantee, dated as of October 13, 2021 (the “Guarantee”),
in favor of Senior Creditor shall continue to be, in full force and effect, and shall apply to all Guaranteed Obligations (as defined
in the Guarantee) and such guarantee is hereby ratified and confirmed in all respects.


 


(c)
Validity of Liens and Loan Documents. The Borrower hereby ratifies and reaffirms the validity and enforceability (without defense,
counterclaim or offset of any kind) of the security interests granted to the Senior Creditor for the benefit of the Buyers (as defined
in the Security Agreement) to secure any of the Obligations (as defined in the Security Agreement). The Borrower hereby confirms and
agrees that notwithstanding the effectiveness of this Amendment, and except as expressly amended by this Amendment, each Transaction
Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects, except that,
on and after the effectiveness of this Amendment, each reference in the Transaction Documents to the “CEO Intercreditor Agreement”,
“thereunder”, “thereof” (and each reference in the Intercreditor Agreement to this “Agreement”, “hereunder”
or “hereof”) or words of like import shall mean and be a reference to the Intercreditor Agreement as amended by this Amendment.
This Amendment shall constitute a “Transaction Document” for purposes of the SPA.


 


SECTION
5. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.


 


SECTION
6. Execution in Counterparts. This Amendment may be executed in any number of separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or electronic PDF of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.


 


SECTION
7. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby.


 


SECTION
8. Integration. This Amendment, the Intercreditor Agreement, the other Transaction Documents and any separate agreements among
the parties hereto or their affiliates or any other agent party to the SPA relating to this Amendment constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.


 


SECTION
9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER THIS Amendment OR ANY OTHER TRANSACTION DOCUMENT OR IN
ANY WAY CONNECTION WITH OR RELATED OR INCIDENTAL TO THE DEALING OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS Amendment
OR ANY OTHER TRANSACTION DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS Amendment
MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION 10 WITH ANY COURT AS WRITTEN EVIDENCE FO THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


SECTION
10. Headings. Section and subsection headings in this Amendment are included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other purpose or be given any substantive effect.


 


SECTION
11. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Borrower, Subordinated Creditor
and their respective successors and assigns, and upon Senior Creditor and the Buyers (as defined in the Security Agreement) and each
of their respective successors and assigns. Any assignment by any party hereto of its rights and obligations hereunder and any interest
therein shall be subject to the provisions of the Transaction Documents.


 


[signature
pages follow]


 




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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first set forth above.


 


	 	Ryan
    Drexler, an individual
	 	 	 
	 	/s/ Ryan Drexler
	 	Address:	[***]
	 	 	 


 




    	[Signature Page to First Amendment to Intercreditor Agreement]



     


    

 


	 	MUSCLEPHARM
    CORPORATION
	 	 	 
	 	By:	/s/
    Sabina Rizvi
	 	Name:	Sabina Rizvi
	 	Title:	Chief Financial Officer



 


	 	Address:	6728 W. Sunset Rd., Suite 130
	 	 	Las Vegas, NV 89118


 




    	[Signature Page to First Amendment to Intercreditor Agreement]



     


    

 


	 	EMPERY
    TAX EFFICIENT, LP
	 	by:
    Empery Asset Management, LP, its authorized agent
	 	 	 
	 	By:	/s/
    Brett Director
	 	Name:	Brett
    Director
	 	Title:	General
    Counsel



 


	 	Address:
    	c/o
    Empery Asset Management, LP
	 	 	1
    Rockefeller Plaza, Suite 1205
	 	 	New
    York, NY 10020


 




    	[Signature Page to First Amendment to Intercreditor Agreement]



     


    

 


EXHIBIT
A


FORM
OF PROMISSORY NOTE