Exhibit 10.2


 


WAIVER
AND CONSENT AGREEMENT


 


This
WAIVER AND CONSENT AGREEMENT (this “Agreement”) is made and entered into as of May 31, 2017 by and among Inpixon (the
“Company”), its U.S. wholly-owned subsidiaries, Inpixon USA and Inpixon Federal, Inc. (together with the Company,
the “Borrowers”), and GemCap Lending I, LLC (the “Lender”). Capitalized terms used herein but not herein
defined shall have the respective meanings ascribed thereto in that certain Loan and Security Agreement dated as of November 14,
2016 by and between the Borrowers and the Lender, as amended by that certain Amendment Number 1 to the Loan and Security Agreement
and to the Loan Agreement Schedule dated as of December 9, 2016 and that certain Amendment Number 2 to the Loan and Security Agreement
dated as of January 24, 2017 (as so amended, the “Loan Agreement”). The Borrowers and the Lender are sometimes referred
to in this Agreement singularly as a “party” and collectively as the “parties”.


 


RECITALS


 


WHEREAS,
Section 10.4 of the Loan Agreement, referred to herein as the “Prohibition Against Assuming Additional Indebtedness”,
states in pertinent part:


 


“Until
payment and satisfaction in full of all Obligations and the termination of this Agreement, Borrower hereby covenants and agrees
as follows: . . . 10.4 Other Liabilities. Borrower will not incur, create, assume, or permit to exist, any Indebtedness
or liability on account of either borrowed money or the deferred purchase price of property, except (i) Obligations to Lender,
(ii) debt expressly subordinated to Borrower’s Obligations to Lender pursuant to a subordination agreement in form and substance
satisfactory to Lender or (iii) Permitted Indebtedness set forth on Section 10.4 of the Borrower’s Disclosure Schedule.”


 


WHEREAS,
Section 10.9 of the Loan Agreement, referred to herein as the “Prohibition Against Redemption of Convertible Notes”,
states in pertinent part:


 


“Until
payment and satisfaction in full of all Obligations and the termination of this Agreement, Borrower hereby covenants and agrees
as follows:: . . . 10.9 Dividends. Borrower will not declare or pay any cash dividend, make any distribution on, redeem,
retire or otherwise acquire directly or indirectly, any of its Equity Interests without the prior written consent of Lender except
for dividends declared by SUSA and SGS and payable only and directly to SG. For the avoidance of doubt, SG will not declare or
pay any cash dividend without the prior written consent of Lender.”


 


WHEREAS,
Section 1.37 of the Loan Agreement provides that:


 


“‘Equity
Interests’ means with respect to any Person, any and all shares, rights to purchase, options, warrants, general, limited
or limited liability partnership interests, membership interests, units, participations or other equivalents of or interest in
(regardless of how designated) equity of such Person, whether voting or nonvoting, including common stock, preferred stock, convertible
securities or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the SEC (or any successor thereto) under the Securities Exchange Act of 1934, as amended).”


 






     

     


    

 





WHEREAS,
the Company desires to enter into that certain securities purchase agreement (the “SPA”) to be entered into by the
Company and each of the investors identified in the Schedule of Buyers attached thereto (collectively, the “Investors”);


 


WHEREAS,
pursuant to the SPA, the Company will issue to the Investors unsecured convertible notes, in the aggregate original principal
amount of up to $2,200,000, which notes shall be convertible into shares of the Company’s common stock, and shall mature
twelve months from the issuance date (the “Convertible Note Offering”); and


 


WHEREAS,
the Company may redeem all or a portion of the convertible notes prior to their maturity date in accordance with the terms and
conditions of the SPA and such notes (the “Note Redemption”).


 


NOW,
THEREFORE, in consideration of the mutual covenants of the parties as hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:


 


AGREEMENT


 


1.       Waiver
and Consent.


 


(a)       The
Lender hereby waives the right to enforce (i) the Prohibition Against Assuming Additional Indebtedness and (ii) the Prohibition
Against Redemption of Convertible Notes, solely for the purpose of permitting the Company to effect (x) the Convertible Note Offering
and (y) the Note Redemption, as set forth in this Agreement and for no other purpose.


 


(b)       This
Agreement is a one-time waiver and limited to the matters expressly waived herein and should not be construed as an indication
that the Lender would be willing to agree to any future modifications to or waiver of any of the terms of the Loan Agreement,
or any modifications to or waiver of any Events of Default that may exist or occur thereunder. Except as expressly set forth above,
the terms and conditions of the Loan Agreement shall remain in full force and effect and each of the Borrowers and the Lender
reserves all rights with respect to any other matters and remedies.


 


2.       Miscellaneous.


 


(a)      This
Agreement contains the entire agreement of the Lender and the Borrowers with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with respect to such matters. This Agreement shall inure
to the benefit of and be binding upon the Lender and the Borrowers and their respective successors and permitted assigns in
accordance with this Agreement. This Agreement may not be amended, modified or supplemented, and no provision of this
Agreement may be waived, other than by a written instrument duly executed and delivered by a duly authorized officer of each
party hereto.


 






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(b)       APPLICABLE
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA,
THE LAWS OF WHICH THE BORROWERS HEREBY EXPRESSLY ELECT TO APPLY TO THIS AGREEMENT, WITHOUT GIVING EFFECT TO PROVISIONS FOR CHOICE
OF LAW THEREUNDER. THE BORROWERS AGREE THAT ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE OR ARISING OUT OF THIS AGREEMENT SHALL
BE COMMENCED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.


 


(c)       WAIVER
OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWERS HEREBY WAIVE ANY AND ALL RIGHTS THAT IT MAY NOW OR HEREAFTER
HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER DIRECTLY
OR INDIRECTLY IN ANY ACTION OR PROCEEDING BETWEEN BORROWERS AND LENDER OR THEIR SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT, THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS AND/OR THE COLLATERAL. IT IS INTENDED THAT
SAID WAIVER SHALL APPLY TO ANY AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDINGS BETWEEN BORROWERS AND
LENDER. BORROWERS WAIVE ALL RIGHTS TO INTERPOSE ANY CLAIMS, DEDUCTIONS, SETOFFS OR COUNTERCLAIMS OF ANY KIND, NATURE OR DESCRIPTION
IN ANY ACTION OR PROCEEDING INSTITUTED BY LENDER WITH RESPECT TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, THE
COLLATERAL OR ANY MATTER ARISING THEREFROM OR RELATING THERETO, EXCEPT COMPULSORY COUNTERCLAIMS.


 


(d)       CONSENT
TO JURISDICTION. BORROWERS HEREBY (a) IRREVOCABLY SUBMIT AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN THE STATE OF CALIFORNIA, LOS ANGELES COUNTY WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT,
THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS AND/OR THE COLLATERAL OR ANY MATTER ARISING THEREFROM OR RELATING
THERETO, AND (b) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT THERETO.
IN ANY SUCH ACTION OR PROCEEDING, BORROWERS WAIVE PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS AND PAPERS THEREIN
AND AGREE THAT THE SERVICE THEREOF MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO BORROWERS AT THEIR OFFICES
SET FORTH HEREIN OR OTHER ADDRESS THEREOF OF WHICH LENDER HAS RECEIVED NOTICE AS PROVIDED IN THE LOAN AGREEMENT. NOTWITHSTANDING
THE FOREGOING, BORROWERS CONSENT TO THE COMMENCEMENT BY LENDER OF ANY SUIT, ACTION OR PROCEEDING IN ANY OTHER JURISDICTION TO
ENFORCE LENDER’S RIGHTS AND BORROWERS WAIVE ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING.


 


(e)       This
Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and,
all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature
is executed) the same with the same force and effect as if such facsimile signature were the original thereof.


 


[SIGNATURE
PAGE FOLLOWS]


 






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IN
WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent Agreement to be duly executed on the day and year first
above written.


 


	 	BORROWERS:
	 	 	 
	 	INPIXON
	 	 	 
	 	By:	/s/
    Nadir Ali
	 	 	Name:
    Nadir Ali
	 	 	Title:
    CEO


 


	 	INPIXON
    USA
	 	 	 
	 	By:	/s/
    Nadir Ali  
	 	 	Name:
    Nadir Ali
	 	 	Title:
    CEO


 


	 	INPIXON
    FEDERAL, INC.
	 	 	 
	 	By:	/s/
    Nadir Ali
	 	 	Name:
    Nardi Ali
	 	 	Title:
    Director


 


[SIGNATURE
PAGE OF THE LENDER FOLLOWS]


 






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	 	LENDER:
	 	 
	 	GEMCAP
    LENDING I, LLC
	 	 	 
	 	By:	/s/
    David Ellis
	 	 	Name:
    David Ellis
	 	 	Title:
    Co-President


 


 


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