Exhibit
10.4


 


amendment
No. 2 to CREDIT, SECURITY AND GUARANTY AGREEMENT
(TERM LOAN) 


 


This
AMENDMENT NO. 2 TO CREDIT, SECURITY AND GUARANTY AGREEMENT (TERM LOAN) (this “Agreement”) is made as of October 27,
2022, by and among XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (“Holdings”) as a Guarantor, each of Holdings’
direct and indirect Subsidiaries set forth on the signature pages hereto as a “Borrower” (collectively, the “Borrowers”
and each individually, a “Borrower”), MidCap Financial Trust, a Delaware statutory trust, as Agent (in such capacity,
together with its successors and assigns, “Agent”) and the other financial institutions or other entities from time
to time parties to the Credit Agreement referenced below, each as a Lender.


 


RECITALS


 


A. Agent,
Lenders, and the Credit Parties have entered into that certain Credit, Security and Guaranty Agreement, dated as of May 6, 2021 (Term
Loan) (as amended by that certain Amendment No. 1 to Credit, Security and Guaranty Agreement (Term Loan), dated as of March 7, 2022,
the “Existing Credit Agreement” and as amended hereby and as it may be further amended, modified, supplemented and
restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain advances
of money and to extend certain financial accommodations to Borrowers in the amounts and manner set forth in the Credit Agreement.


 


B. The
Credit Parties have requested, and Agent and all Lenders have agreed, to amend certain provisions of the Existing Credit Agreement, all
in accordance with the terms and subject to the conditions set forth herein.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and the Credit Parties hereby agree as follows, which amendments
to the Original Credit Agreement are effective as of the first day after the end of the Interest Period during which this Agreement becomes
effective in accordance with Section 3 below:


 


1. Recitals.
This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly
noted, will be deemed to reference the Credit Agreement as amended hereby. The Recitals set forth above shall be construed as part of
this Agreement as if set forth fully in the body of this Agreement and capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto).


 


2. Amendments
to Existing Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions
to effectiveness set forth in Section 3 below, the Existing Credit Agreement is hereby amended as follows:


 


(a) Section
1.1 of the Existing Credit Agreement is hereby amended by adding the following definitions in alphabetical order:


 


“Available
Tenor” means, as of any date of determination with respect to the then-current Benchmark, (a) if such Benchmark is a term rate,
any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant
to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof)
that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each
case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition
of “Interest Period” or similar term pursuant to Section 2.2(n).


 




    	 



    	 



    

 


“Benchmark”
means, initially, Term SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with
respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent
that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.2(n).


 


“Benchmark
Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been
selected by Agent in consultation with the Borrowers giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit
facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would
be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Financing
Documents.


 


“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may
be a positive or negative value or zero) that has been selected by Agent in consultation with the Borrowers giving due consideration
to any selection or recommendation by the Relevant Governmental Body, or any evolving or then-prevailing market convention at such time,
for determining a spread adjustment, or method for calculating or determining such spread adjustment, for such type of replacement for
U.S. dollar-denominated syndicated credit facilities.


 


“Benchmark
Replacement Date” means the earlier to occur of the following events with respect to the then-current Benchmark: (a) in the
case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement
or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component
thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such
Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor
for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness
will be determined by reference to the most recent statement or publication referenced in such clause (c) even if any Available Tenor
of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence
of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).


 




    	2



    	 



    

 


“Benchmark
Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a)
a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement
or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in
the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official or resolution authority
with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution
authority, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available
Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof)
are no longer, or as of a specified future date will no longer be, representative. For the avoidance of doubt, a “Benchmark Transition
Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth
above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation
thereof).


 


“Benchmark
Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement
Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th
day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such
prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).


 


“Benchmark
Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses
(a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all
purposes hereunder and under any Financing Document in accordance with Section 2.2(n) and (b) ending at the time that a Benchmark Replacement
has replaced the then-current Benchmark for all purposes hereunder and under any Financing Document in accordance with Section 2.2(n).


 




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“Conforming
Changes” means, with respect to Term SOFR or any Benchmark Replacement, any technical, administrative or operational changes
(including (a) changes to the definition of “Business Day”, “Reference Time” or other definitions, (b) the addition
of concepts such as “interest period”, (c) changes to timing and/or frequency of determining rates, making interest payments,
giving borrowing requests, prepayment, conversion or continuation notices, or length of lookback periods, (d) the applicability of Section
2.8 (Taxes; Capital Adequacy; Increased Costs; Inability to Determine Rates; Illegality) and (e) other technical, administrative
or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of Term SOFR or such Benchmark
Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent
decides that adoption of any portion of such market practice is not administratively feasible or determines that no such market practice
exists, in such other manner as Agent decides is reasonably necessary in connection with the administration of this Agreement and the
other Financing Documents).


 


“Floor”
means the rate per annum of interest equal to one percent (1.00%).


 


“Reference
Time” means approximately a time substantially consistent with market practice two (2) SOFR Business Days prior to the first
day of each calendar month. If by 5:00 pm (New York City time) on any interest lookback day, Term SOFR in respect of such interest lookback
day has not been published on the SOFR Administrator’s Website, then Term SOFR for such interest lookback day will be Term SOFR
as published in respect of the first preceding SOFR Business Day for which Term SOFR was published on the SOFR Administrator’s
Website; provided that such first preceding SOFR Business Day is not more than three (3) SOFR Business Days prior to such interest lookback
day.


 


“Relevant
Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed
or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.


 


“Second
Amendment” means that certain Amendment No. 2 to Credit, Security and Guaranty Agreement (Term Loan), dated as of October 27,
2022, by and among the Borrowers, Agent and the Lenders party thereto.


 


“SOFR”
means, with respect to any SOFR Business Day, a rate per annum equal to the secured overnight financing rate for such SOFR Business Day.


 


“SOFR
Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of Term SOFR selected by
Agent in its reasonable discretion).


 


“SOFR
Administrator’s Website” means the website of the SOFR Administrator, currently at https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr.html,
or any successor source for Term SOFR identified by the SOFR Administrator from time to time.


 


“SOFR
Business Day” means any day other than a Saturday or Sunday or a day on which the Securities Industry and Financial Markets
Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United
States government securities.


 




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“SOFR
Implementation Date” means the first day after the end of the Interest Period during which the Second Amendment shall become
effective in accordance with its terms.


 


“SOFR
Interest Rate” means, with respect to each day during which interest accrues on a Loan, the rate per annum (expressed as a
percentage) equal to (a) Term SOFR for the applicable Interest Period for such day; or (b) if the then-current Benchmark has been replaced
with a Benchmark Replacement pursuant to Section 2.2(n), such Benchmark Replacement for such day. Notwithstanding the foregoing, the
SOFR Interest Rate shall not at any time be less the Floor.


 


“SOFR
Loan” means a Loan that bears interest at a rate based on Term SOFR.


 


“Term
SOFR” means the greater of (a) the forward-looking term rate for a period comparable to such Interest Period based on SOFR
that is published by the SOFR Administrator and is displayed on the SOFR Administrator’s Website at approximately the Reference
Time for such Interest Period plus 0.11448% and (b) the Floor. Unless otherwise specified in any amendment to this Agreement entered
into in accordance with Section 2.2(n), in the event that a Benchmark Replacement with respect to Term SOFR is implemented, then all
references herein to Term SOFR shall be deemed references to such Benchmark Replacement.


 


“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.”


 


(b) Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the definition of “Business Day” where it appears therein
and replacing it with the following:


 


“Business
Day” means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on which
commercial banks in Washington, DC and New York City are authorized by law to close; provided, however, that when used in the context
of a SOFR Loan, the term “Business Day” shall also exclude any day that is not also a SOFR Business Day.


 


(c) Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the definitions of “Base LIBOR Rate” and “LIBOR
Rate” in their entirety.


 


(d) The
Existing Credit Agreement is hereby amended by deleting Section 2.1(a)(iv) in its entirety.


 


(e) Section
2.2(a) of the Existing Credit Agreement is hereby amended by deleting such subsection in its entirety and replacing it with the following:


 


“(a) Interest.


 


(i) From
and following the SOFR Implementation Date, except as expressly set forth in this Agreement, Loans and the other Obligations shall bear
interest at the sum of the SOFR Interest Rate plus the Applicable Margin. Interest on the Loans shall be paid in arrears on the first
(1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise. Interest on all other Obligations shall
be payable upon demand.


 




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(ii) In
the event one or more of the following events occurs with respect to Term SOFR: (a) a public statement or publication of information
by or on behalf of the SOFR Administrator announcing that the SOFR Administrator has ceased or will cease to provide Term SOFR for a
1-month period, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide Term SOFR for a 1-month period; (b) a public statement or publication of information by the regulatory
supervisor for the SOFR Administrator, the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official or resolution
authority with jurisdiction over the SOFR Administrator, or a court or an entity with similar insolvency or resolution authority, which
states that the SOFR Administrator has ceased or will cease to provide Term SOFR for a 1-month period permanently or indefinitely, provided
that, at the time of such statement or publication, there is no successor administrator that will continue to provide Term SOFR for a
1-month period; or (c) a public statement or publication of information by the regulatory supervisor for the SOFR Administrator announcing
that Term SOFR for a 1-month period is no longer, or as of a specified future date will no longer be, representative and Agent has provided
Borrower Representative with notice of the same, any outstanding affected SOFR Loans will be deemed to have been converted to Base Rate
Loan at the end of the applicable Interest Period.


 


(iii)
In connection with Term SOFR, Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to
the contrary herein or in any other Financing Document, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement or any other Financing Document. Agent will promptly notify Borrower
Representative and the Lenders of the effectiveness of any Conforming Changes.”


 


(f) A
new subsection (n) is hereby added to Section 2.2 of the Credit Agreement to read as follows:


 


“(n) Benchmark
Replacement Setting; Conforming Changes.


 


(i) Upon
the occurrence of a Benchmark Transition Event, Agent and Borrowers may amend this Agreement to replace the then-current Benchmark with
a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after
Agent has posted such proposed amendment to all Lenders and Borrowers so long as Agent has not received, by such time, written notice
of objection thereto from Lenders comprising the Required Lenders. No such replacement will occur prior to the applicable Benchmark Transition
Start Date. In connection with the implementation of a Benchmark Replacement, Agent will have the right in consultation with the Borrowers
to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Financing Document,
any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to
this Agreement or any other Financing Document. Agent will promptly notify Borrower Representative and the Lenders of the implementation
of any Benchmark Replacement and the effectiveness of any Conforming Changes.


 




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(ii) Any
determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section
will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other
party to this Agreement or any other Financing Document, except, in each case, as expressly required pursuant to this Section. Notwithstanding
anything to the contrary herein or in any other Financing Document, at any time, (a) if the then-current Benchmark is a term rate (including
Term SOFR) and either (i) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such
rate from time to time as selected by Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator of such
Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no
longer representative, then Agent may modify the definition of “Interest Period” (or any similar or analogous definition)
for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor, and (b) if a tenor that was
removed pursuant to clause (a) above either (i) is subsequently displayed on a screen or information service for a Benchmark or (ii)
is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark, then Agent may modify
the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such
time to reinstate such previously removed tenor. Agent will promptly notify Borrower Representative of the removal or reinstatement of
any tenor of a Benchmark pursuant to this Section.


 


(iii) Upon
Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period, any outstanding affected
Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period.”


 


(g) Section
2.8 of the Existing Credit Agreement is hereby amended by:


 


 (i) deleting the name of such Section in its entirety and restating it as follows:




 


“Section
2.8 Taxes; Capital Adequacy; Increased Costs; Inability to Determine Rates; Illegality.”


 


 (ii) deleting subsection (g) thereof in its entirety;




 


 (iii) renumbering the existing clause (h) as new clause (g) therein;




 


 (iv) adding the following new clause (h) in the appropriate alphabetical ordering therein;




 


“(h) If
any Lender shall reasonably determine that the adoption or taking effect of, or any change in, any applicable Law shall (i) impose, modify
or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender, (ii) subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, or any SOFR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof
(except for Taxes covered by Section 2.8); or (iii) impose on any Lender any other condition, cost or expense affecting this Agreement
or SOFR Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining
any Loan the interest on which is determined by reference to Term SOFR (or of maintaining its obligation to make any such Loan), or to
reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request
of such Lender, the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.”


 




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		(v)	in
                                            subsection (i) thereof, deleting the reference to “either Section 2.1(a)(iv) or Section
                                            2.8(h)” in its entirety and replacing it with “the clauses in this Section 2.8”;
                                            and



 


		(vi)	adding
                                            the following new clauses (j), (k) and (l) in the appropriate alphabetical order therein:



 


“(j) Subject
to Section 2.2(n), if Agent determines (which determination shall be conclusive and binding absent manifest error) that Term SOFR cannot
be determined pursuant to the definition thereof on or prior to the first day of any Interest Period, Agent will promptly so notify the
Borrowers and each Lender. Upon notice thereof by Agent to Borrowers, any obligation of the Lenders to make SOFR Loans shall be suspended
until Agent revokes such notice. Upon receipt of such notice, any outstanding affected SOFR Loans will be deemed to have been converted
into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, Borrowers shall also pay any additional
amounts required pursuant to this Agreement.


 


(k) If
any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable lending office to make, maintain or fund SOFR Loans, or to determine or charge interest rates based upon Term
SOFR, then, upon notice thereof by such Lender to Borrowers (through Agent), any obligation of such Lender to make SOFR Loans shall be
suspended, in each case until such Lender notifies Agent and Borrowers that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, all SOFR Loans shall become Base Rate Loans. Upon any such conversion, Borrowers shall also pay any
additional amounts required pursuant to this Agreement.


 


(l) Each
party’s obligations under this Section 2.8 shall survive the resignation or replacement of Agent or any assignment of rights by,
or the replacement of, a Lender, and the repayment, satisfaction or discharge of all Obligations hereunder.”


 


3. Conditions
to Effectiveness. This Agreement shall become effective as of the date (the “Effective Date”) on which each
of the following conditions have been satisfied, as determined by Agent in its sole discretion; provided that the amendments set
forth in Section 2 hereof shall not become effective until the first day of the next Interest Period after the Effective Date,
at which point such amendments shall automatically become effective without any further action by any party:


 


(a) Each
Credit Party shall have delivered to Agent this Agreement executed by an authorized officer of such Credit Party; and


 


(b) Agent
shall have received a duly executed copy of the Amendment No. 2 to Credit, Security and Guaranty Agreement (Revolving
Loan), dated as of the date hereof.


 




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4. No
Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this
Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement,
the Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing.
Nothing herein is intended or shall be construed as a waiver of any existing Defaults or Events of Default under the Credit Agreement
or the other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default. This Agreement
(together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of
the Credit Agreement.


 


5. Miscellaneous.


 


(a) Reference
to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean and be a
reference to the Credit Agreement, as amended by this Agreement. Except as specifically amended above, the Credit Agreement, and all
other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are
hereby ratified and confirmed in all respects by each Credit Party.


 


(b) Governing
Law. THIS AGREEMENT AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT
LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).


 


(c) Incorporation
of Credit Agreement Provisions. The provisions contained in Section 11.6 (Indemnification), Section 13.8(b) (Submission
to Jurisdiction) and Section 13.9 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference to the same
extent as if reproduced herein in their entirety.


 


(d) Headings.
Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for
any other purpose.


 


(e) Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be deemed an original and all of which when taken together
shall constitute one and the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any
executed signature page shall bind the parties hereto.


 


(f) Entire
Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to the subject matter hereof.


 


(g) Severability.
In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable 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.


 


(h) Successors/Assigns.
This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject
to the provisions of the Credit Agreement and the other Financing Documents.


 


[SIGNATURES
APPEAR ON FOLLOWING PAGES]


 




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IN
WITNESS WHEREOF, intending to be legally bound, and intending that this document constitute an agreement executed under seal, the undersigned
have executed this Agreement under seal as of the day and year first hereinabove set forth.


 


	AGENT:	MIDCAP
    FINANCIAL TRUST, 
	 	as
    Agent
	 	 	 
	 	By:
    	Apollo
    Capital Management, L.P.,
	 	its investment manager
	 	 	 
	 	By:	Apollo
    Capital Management GP, LLC,
	 	its general partner
	 	 	 
	 	By:	/s/
    Maurice Ansellem
	 	Name:
    	Maurice
    Amsellem
	 	Title:
    	Authorized
    Signatory 


 


[Signatures
Continue on Following Page]


 




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	LENDERS:	ELM
    2020-3 TRUST
	 	 	 
	 	By:
    	MidCap
    Financial Services Capital Management, LLC,
    as Servicer 
	 	 	 
	 	By:
    	/s/
    John O’Dea
	 	Name:
    	John
    O’Dea
	 	Title:
    	Authorized
    Signatory
	 	 	 
	 	ELM
    2020-4 TRUST
	 	 	 
	 	By:
    	MidCap
    Financial Services Capital Management, LLC,
    as Servicer 
	 	 	 
	 	By:
    	/s/
    John O’Dea
	 	Name:
    	John
    O’Dea
	 	Title:
    	Authorized
    Signatory


 


[Signatures
Continue on Following Page]


 




    	11



    	 



    

 


	BORROWERS:	 	                            
	 	 	 
	 	XTANT
    MEDICAL, INC.
	 	 	 
	 	By:	/s/
    Sean E. Browne
	 	Name	Sean
    E. Browne
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	BACTERIN
    INTERNATIONAL, INC.
	 	 	 
	 	By:	/s/
    Sean E. Browne
	 	Name	Sean
    E. Browne
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	X-SPINE
    SYSTEMS, INC.
	 	 	 
	 	By:	/s/
    Sean E. Browne
	 	Name	Sean
    E. Browne
	 	Title:	Chief
    Executive Officer
	 	 	 
	GUARANTOR:	 	 
	 	 	 
	 	XTANT
    MEDICAL HOLDINGS, LLC
	 	 	 
	 	By:	/s/
    Sean E. Browne
	 	Name	Sean
    E. Browne
	 	Title:	President
    and Chief Executive Officer


 




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