Exhibit
10.2


 


CONSENT


 


THIS
CONSENT, dated as of May 10, 2020 and effective as of May 7, 2020 (this “Consent”), is made among TearLab
Corporation, a Delaware corporation (the “Borrower”), the Subsidiary Guarantors listed on the signature
pages hereto, and the lenders listed on the signature pages hereof (collectively, the “Lenders”), with
respect to the Loan Agreement referred to below.


 


RECITALS


 


WHEREAS,
Borrower and the Lenders are parties to the Term Loan Agreement, dated as of March 4, 2015, with the Subsidiary Guarantors from
time to time party thereto (as amended by the Omnibus Amendment Agreement, dated as of April 2, 2015, Amendment 2, dated as of
August 6, 2015, Amendment 3, dated as of December 31, 2015, Amendment 4, dated as of April 7, 2016, Amendment 5, dated as of October
12, 2017, Amendment 6, dated as of April 4, 2018, Amendment 7, dated as of November 12, 2018, and Amendment 8, dated as of October
4, 2019, and as further amended and restated, modified or supplemented from time to time, the “Loan Agreement”);


 


WHEREAS,
Borrower has requested that the Lenders consent to the incurrence of unsecured Indebtedness by the Borrower under the Small Business
Administration’s (the “SBA”) Paycheck Protection Program under the Coronavirus Aid, Relief, and
Economic Security Act (the “Paycheck Protection Program”) in an aggregate principal amount of up to
$801,030.00 (the “SBA Loan”); and


 


WHEREAS,
the Lenders (which Lenders constitute the Majority Lenders as required by Section 12.04 of the Loan Agreement) have agreed,
notwithstanding Section 9.01 of the Loan Agreement, to consent to the SBA Loan.


 


NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:


 


SECTION
1. Definitions; Interpretation.


 


(a)
Terms Defined in Loan Agreement. All capitalized terms used in this Consent (including in the recitals hereof) and not
otherwise defined herein shall have the meanings assigned to them in the Loan Agreement.


 


(b)
Interpretation. The rules of interpretation set forth in Section 1.03 of the Loan Agreement shall be applicable
to this Consent and are incorporated herein by this reference.


 


SECTION
2. Consent. Subject to Section 4 of this Consent, the Lenders hereby consent for purposes of Section 9.01 of
the Loan Agreement to the incurrence of the SBA Loan; provided that (a) the SBA Loan shall be unsecured at all times and (b) the
interest rate on the SBA Loan shall not exceed 1.0% per annum.


 


SECTION
3. Agreements. Subject to Section 4 of this Consent, the Administrative Agent, the Lenders and the Obligors hereby
agree that:


 




    	 



    	 



    

 


(a)
the SBA Loan shall constitute “Material Indebtedness” for all purposes of the Loan Agreement; and


 


(b)
the Obligors shall provide prompt written notice to the Lenders upon any Responsible Officer of an Obligor becoming aware, or
having reason to become aware, that the SBA or any other applicable Governmental Authority has determined that any portion of
the SBA Loan is, or will in the future, not be eligible for forgiveness pursuant to the Paycheck Protection Program as provided
in Section 7(a) of the Small Business Act.


 


SECTION
4. Conditions of Effectiveness. The effectiveness of Sections 2 and 3 of this Consent shall be subject to the
following conditions precedent:


 


(a)
Borrower shall have submitted all required forms, applications and certificates required for, and shall have been conditionally
approved to receive, the SBA Loan under the Paycheck Protection Program;


 


(b)
Borrower, the Subsidiary Guarantors and the Majority Lenders shall have duly executed and delivered this Consent pursuant to Section
12.04 of the Loan Agreement; provided, however, that this Consent shall have no binding force or effect unless
all conditions set forth in this Section 4 have been satisfied;


 


(c)
No Default or Event of Default shall have occurred and be continuing;


 


(d)
No Lender or any of their Affiliates is deemed an “affiliate” of any Obligor or any of its Subsidiaries for any purpose
related to the SBA Loan, including the eligibility criteria with respect thereto under the Paycheck Protection Program or by the
SBA; and


 


(e)
The Obligors shall have paid or reimbursed the Lenders for their reasonable and documented out-of-pocket costs and expenses (including
the reasonable and documented fees and expenses of the Lenders’ legal counsel).


 


SECTION
5. Representations and Warranties; Reaffirmation.


 


(a)
Each Obligor hereby represents and warrants that:


 


(i)
Each Obligor has the full power, authority and legal right to make and perform this Consent. This Consent is within each Obligor’s
corporate or equivalent powers and has been duly authorized by all necessary corporate or equivalent action and, if required,
by all necessary shareholder action. This Consent has been duly executed and delivered by each Obligor and constitutes a legal,
valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the
enforcement of creditors’ rights and (B) the application of general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). This Consent (w) does not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority or any third party, except for such as have been obtained or
made and are in full force and effect, (x) will not violate any applicable law or regulation or the charter, bylaws or other organizational
documents of any Obligor or any of its Subsidiaries, (y) will not violate any order of any Governmental Authority and (z) will
not violate or result in a default under any indenture, agreement or other instrument binding upon any Obligor or any of its Subsidiaries
or assets, or give rise to a right thereunder to require any payment to be made by any such Person.


 




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(ii)
No Default or Event of Default has occurred or is continuing or will result after giving effect to this Consent.


 


(iii)
Except as previously disclosed in Borrower’s public filings with the SEC, no Material Adverse Effect has occurred or is
reasonably likely to occur as a result of giving effect to this Consent or the transactions contemplated hereby.


 


(iv)
Each Obligor (i) has consulted its own legal and financial advisors with respect to all matters related to the SBA Loan (including
eligibility criteria) and the Paycheck Protection Program, (ii) is responsible for making its own independent judgment with respect
to the SBA Loan and the process leading thereto, and (iii) has not relied on any Lender or any of their Affiliates with respect
to any of such matters.


 


(b)
Each Obligor hereby ratifies, confirms, reaffirms, and acknowledges its obligations (including its payment obligations under Section
12.03(a)(i)(z) of the Loan Agreement) under the Loan Documents to which it is a party and agrees that the Loan Documents remain
in full force and effect, undiminished by this Consent, except as expressly provided herein. By executing this Consent, each Obligor
acknowledges that it has read, consulted with its attorneys regarding, and understands, this Consent.


 


SECTION
6. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.


 


(a)
Governing Law. This Consent and the rights and obligations of the parties hereunder shall be governed by, and construed
in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the
application of the laws of any other jurisdiction; provided that Section 5-1401 of the New York General Obligations Law
shall apply.


 


(b)
Submission to Jurisdiction. Each Obligor agrees that any suit, action or proceeding with respect to this Consent or any
other Loan Document to which it is a party or any judgment entered by any court in respect thereof may be brought initially in
the federal or state courts in Houston, Texas or in the courts of its own corporate domicile and irrevocably submits to the non-exclusive
jurisdiction of each such court for the purpose of any such suit, action, proceeding or judgment. This Section 6 is for
the benefit of the Lenders only and, as a result, no Lender shall be prevented from taking proceedings in any other courts with
jurisdiction. To the extent allowed by applicable Laws, the Lenders may take concurrent proceedings in any number of jurisdictions.


 


(c)
Waiver of Jury Trial. EACH OBLIGOR AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT, THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 




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SECTION
7. Miscellaneous.


 


(a)
No Waiver. Nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained
in the Loan Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except
as expressly stated herein, the Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as modified
hereby, the Loan Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan
Documents to the Loan Agreement shall be deemed to be references to the Loan Agreement as modified hereby.


 


(b)
Severability. In case any provision of or obligation under this Consent shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby.


 


(c)
Headings. Headings and captions used in this Consent (including the Exhibits, Schedules and Annexes hereto, if any) are
included for convenience of reference only and shall not be given any substantive effect.


 


(d)
Integration. This Consent constitutes a Loan Document and, together with the other Loan Documents, incorporates all negotiations
of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto
with respect to the subject matter hereof.


 


(e)
Counterparts. This Consent may be executed in any number of counterparts, all of which taken together shall constitute
one and the same instrument and any of the parties hereto may execute this Consent by signing any such counterpart. Receipt by
facsimile or other electronic transmission of any executed signature page to this Consent shall constitute effective delivery
of such signature page.


 


(f)
Controlling Provisions. In the event of any inconsistencies between the provisions of this Consent and the provisions of
any other Loan Document, the provisions of this Consent shall govern and prevail. Except as expressly modified by this Consent,
the Loan Documents shall not be modified and shall remain in full force and effect.


 


[Remainder
of page intentionally left blank]


 




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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first
above written.


 


	 	BORROWER:
	 	 
	 	TEARLAB
    CORPORATION
	 	 
	 	By:
    	/s/
    Seph Jensen            
	 	Name:	Seph
    Jensen
	 	Title:
    	Chief
    Executive Officer


 


	 	SUBSIDIARY
    GUARANTORS:
	 	 
	 	TEARLAB
    RESEARCH, INC.
	 	 	 
	 	By:
    	/s/
    Seph Jensen       
	 	Name:	Seph
    Jensen
	 	Title:
    	Chief
    Executive Officer


 


	 	OCUHUB
    HOLDINGS, INC.
	 	 	 
	 	By:
    	/s/
    Seph Jensen      
	 	Name:	Seph
    Jensen
	 	Title:
    	Chief
    Executive Officer


 


	 	OCCULOGIX
    CANADA CORP.
	 	 
	 	By:
    	/s/
    Seph Jensen
	 	Name:	Seph
    Jensen
	 	Title:
    	Chief
    Executive Officer


 


[Signature Page to Consent]


 




    	 



    	 



    

 


LENDERS:


 


CAPITAL
ROYALTY PARTNERS II L.P.


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II GP L.P.,
	 	 	its
    General Partner


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II GP LLC,
	 	 	its
    General Partner


 


	 	By:	/s/
    Nathan Hukill	 
	 	Name:	Nathan
    Hukill	 
	 	Title:	Authorized
    Signatory	 


 


CAPITAL
ROYALTY PARTNERS II (CAYMAN) AIV L.P.


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II (CAYMAN) GP L.P.,
	 	 	its
    General Partner


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II (CAYMAN) GP LLC,
	 	 	its
    General Partner


 


	 	By:	/s/
    Nathan Hukill 	 
	 	Name:	Nathan
    Hukill	 
	 	Title:	Authorized
    Signatory	 


 


	WITNESS:	/s/
    Nicole Neeson	 
	Name:	Nicole
    Neeson	 


 


CAPITAL
ROYALTY PARTNERS II – PARALLEL FUND “A” L.P.


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II – PARALLEL FUND “A” GP L.P.,
	 	 	its
    General Partner


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II – PARALLEL FUND “A” GP LLC,
	 	 	its
    General Partner


 


	 	By:	/s/
    Nathan Hukill	 
	 	Name:	Nathan
    Hukill	 
	 	Title:	Authorized
    Signatory	 


 


[Signature Page to Consent]


 




    	 



    	 



    

 


CAPITAL
ROYALTY PARTNERS II – PARALLEL FUND “B” (CAYMAN) L.P.


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II (CAYMAN) GP L.P.,
	 	 	its
    General Partner


 


	 	By:	CAPITAL
    ROYALTY PARTNERS II (CAYMAN) GP LLC,
	 	 	its
    General Partner


 


	 	By:	/s/
    Nathan Hukill 	 
	 	Name:	Nathan
    Hukill	 
	 	Title:	Authorized
    Signatory	 


 


	WITNESS:	/s/
    Nicole Neeson	 
	Name:	Nicole
    Neeson	 


 


PARALLEL
INVESTMENT OPPORTUNITIES PARTNERS II L.P.


 


	 	By:	PARALLEL
    INVESTMENT OPPORTUNITIES PARTNERS II GP L.P., 
	 	 	its
    General Partner


 


	 	By:	PARALLEL
    INVESTMENT OPPORTUNITIES PARTNERS II GP L.P., 
	 	 	its
    General Partner


 


	 	By:	/s/
    Nicole Neeson 	 
	 	Name:	Nathan
    Hukill	 
	 	Title:	Authorized
    Signatory	 


 


[Signature
Page to Consent]