EXHIBIT 10.2


 





 



 


XTANT MEDICAL HOLDINGS, INC.


 


(formerly known as Bacterin International Holdings,
Inc.)


 


6.00% CONVERTIBLE SENIOR NOTES DUE 2021


 





 



 


AMENDMENT NUMBER 5 TO INDENTURE


 


Dated as of December 29, 2017


 





 



 


WILMINGTON TRUST, NATIONAL ASSOCIATION

as Trustee


 





 



 




     


     


    

 


 


THIS AMENDMENT NUMBER 5
TO INDENTURE (this “Amendment”), dated as of December 29, 2017, is between Xtant Medical Holdings, Inc., a Delaware
corporation formerly known as Bacterin International Holdings, Inc. (the “Company”), and Wilmington Trust, National
Association, a national banking association, as trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, the Company and
the Trustee entered into an Indenture, dated as of July 31, 2015, and as amended by Amendment Number 1 to Indenture, dated as of
August 16, 2017, Amendment Number 2 to Indenture, dated as of October 2, 2017, Amendment Number 3 to Indenture, dated as of October
31, 2017, and Amendment Number 4 and Waiver to Indenture, dated as of December 1, 2017 (the “Indenture”), pursuant
to which $68,000,000 in principal amount of 6.00% Senior Notes due 2021 (the “Notes”), have been issued;


 


WHEREAS, Section 9.02 of
the Indenture provides that the Company, upon the written consent of each affected Holder and when authorized by a Board Resolution,
may amend Section 2.04(a)(ii) of the Indenture;


 


WHEREAS, all acts and things
prescribed by the Indenture, by law and by the Certificate of Incorporation and the Bylaws of the Company and of the Trustee necessary
to make this Amendment a valid instrument legally binding on the Company and the Trustee, in accordance with its terms, have been
duly done and performed;


 


WHEREAS, there is currently
outstanding under the Indenture $68,000,000 aggregate principal amount of the Notes, and the Holders of 100% of the Notes have
previously provided written consent to this Amendment;


 


WHEREAS, the Company has
provided to the Trustee the Officer’s Certificate and Opinion of Counsel required by Section 9.09 of the Indenture with respect
to the execution of this Amendment;  


 


WHEREAS, the Company desires
to execute this Amendment embodying the modifications of the Indenture approved as aforesaid and has requested that the Trustee
execute this Amendment pursuant to clauses (b) and (f) of Section 9.02 of the Indenture; and


 


WHEREAS, all capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.


 


NOW, THEREFORE, to comply
with the provisions of the Indenture and in consideration of the above premises, the Company and the Trustee covenant and agree
for the equal and proportionate benefit of the respective Holders of the Notes as follows:


 


ARTICLE 1.


 


Section 1.01         This
Amendment amends the Indenture and does and shall be deemed to form a part of, and shall be construed in connection with and as
part of, the Indenture for any and all purposes.


 




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Section 1.02         This
Amendment shall become effective immediately upon its execution and delivery by the Company and the Trustee.


 


ARTICLE 2.


 


Section 2.01         Amendment
of Section 2.04(a)(ii). Section 2.04(a)(ii) of the Indenture is hereby amended by deleting the last sentence from such Section
2.04(a)(ii) (which sentence, for the avoidance of doubt, was previously added by Amendment Number 4 and Waiver to Indenture) in
its entirety and inserting the following thereof:


 


Notwithstanding anything to the
contrary in this Indenture, (A) interest accrued on the Notes otherwise required to be paid in cash on July 15, 2017 (the second
semi-annual Interest Payment Date in 2017) shall instead be required to be paid in cash on January 31, 2018, plus interest accrued
on such interest from July 15, 2017 to the date of payment thereof at a rate equal to 6.00% per annum plus 100 basis points, (B)
the record date for the payment of such amount shall be June 30, 2017 and (C) no Event of Default shall occur (and be waived for
all purposes under the Indenture) as a result of the non-payment of such interest on July 15, 2017. Further, notwithstanding anything
to the contrary in this Indenture, (A) interest accrued on the Notes otherwise required to be paid in cash on January 15, 2018
(the first semi-annual Interest Payment Date in 2018) shall instead be required to be paid in cash on January 31, 2018, plus interest
accrued on such interest from January 15, 2018 to the date of payment thereof at a rate equal to 6.00% per annum plus 100 basis
points, (B) the record date for the payment of such amount shall be December 31, 2017 and (C) no Event of Default shall occur (and
be waived for all purposes under the Indenture) as a result of the non-payment of such interest on January 15, 2018.


 


ARTICLE 3.


 


Section 3.01         Except
as specifically modified herein, the Indenture and the Notes are in all respects ratified and confirmed (mutatis mutandis) and
shall remain in full force and effect in accordance with their terms with all capitalized terms used herein without definition
having the same respective meanings ascribed to them as in the Indenture.


 


Section 3.02         No
duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Amendment.
This Amendment is executed and accepted by the Trustee subject to all the terms and conditions set forth in the Indenture with
the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with
respect hereto. The Trustee is not responsible in any manner whatsoever for or in respect of the validity or sufficiency of this
Amendment or for or in respect of the recitals contained herein.


 


Section 3.03         THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 




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Section 3.04         The
parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of such executed copies
together shall represent the same agreement.


 


[Remainder of Page Intentionally Left Blank;
Signature Page Follows]


 




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IN WITNESS WHEREOF, the
undersigned have executed this Amendment as of the day and year first written above.


 


	 	
        XTANT MEDICAL HOLDINGS, INC.,

        formerly known as Bacterin International Holdings, Inc.

	 	 	 
	 	By:	/s/ Carl D. O’Connell
	 	Name:	Carl D. O’Connell
	 	Title:	Chief Executive Officer
	 	 	 
	 	
        WILMINGTON TRUST, NATIONAL ASSOCIATION,

        as Trustee

	 	 	 
	 	By:	/s/ Lynn M. Steiner
	 	Name:	Lynn M. Steiner
	 	Title:	Vice President


 


[Signature
Page to Amendment Number 5 to Indenture]