Exhibit 10.29


 


THIRD AMENDMENT TO LOAN AND SECURITY
AGREEMENT AND ASSUMPTION AGREEMENT


 


This Third Amendment
to Loan and Security Agreement and Assumption Agreement (this “Assumption Agreement”) is entered into as of
January 4, 2021, by and among (a) SILICON VALLEY BANK, a California corporation, with its principal place of business at
3003 Tasman Drive, Santa Clara, California 95054 and with a loan production office located at 275 Grove Street, Suite 2-200, Newton,
Massachusetts 02466 (“Bank”) and (b) (i) MOTUS GI, INC., a Delaware corporation, with its principal place
of business at 1301 East Broward Boulevard, 3rd Floor Fort Lauderdale, Florida 33301 (“Existing Borrower”),
(ii) MOTUS GI, LLC, a Delaware limited liability company, with its principal place of business at 1301 East Broward Boulevard,
3rd Floor Fort Lauderdale, Florida 33301 (“New Borrower”), and (iii) MOTUS GI HOLDINGS, INC., a Delaware
corporation, with its principal place of business at 1301 East Broward Boulevard, 3rd Floor Fort Lauderdale, Florida 33301 (“Holdings”).


 


Reference is made
to that certain Loan and Security Agreement dated as of December 13, 2019, as amended by that certain Joinder and First Amendment
to Loan and Security Agreement dated as of February 7, 2020 between Bank and Borrower, and as further amended by that certain Second
Amendment to Loan and Security Agreement dated as of February 25, 2020 between Bank and Borrower (as may be further amended, affected,
modified, restated, replaced, or supplemented from time to time, the “Loan Agreement”). All capitalized terms
used herein without definitions shall have the meanings given such terms in the Loan Agreement.


 


1. Assumption. New Borrower is the successor entity to Existing Borrower. New Borrower hereby agrees to substitute itself
as the “Borrower” under the Loan Agreement and each of the Loan Documents in lieu of Existing Borrower, and agrees
to comply with and be bound by all of the terms, conditions and covenants of the Loan Agreement and the Loan Documents, as if it
were originally named “Borrower” therein. Without limiting the generality of the preceding sentence, New Borrower hereby
assumes and agrees to pay and perform when due all present and future indebtedness, liabilities and obligations of Existing Borrower
under the Loan Agreement, including, without limitation, the Obligations. All references in the Loan Documents to “Borrower”
shall be deemed to refer to New Borrower. Furthermore, all present and future obligations of Existing Borrower shall be deemed
to refer to all present and future obligations of New Borrower. New Borrower acknowledges that the Obligations are due and owing
to Bank from Existing Borrower, without any defense, offset or counterclaim of any kind or nature whatsoever as of the date hereof.


 


2. Grant of Security Interest. To secure the payment and performance in full of all of the Obligations, New Borrower
hereby grants to Bank a continuing lien upon and security interest in all of New Borrower’s now existing or hereafter arising
rights and interest in such assets of New Borrower as are consistent with the description of the Collateral set forth on Exhibit
A of the Loan Agreement (as if such Collateral were deemed to pertain to the assets of New Borrower), whether now owned or existing
or hereafter created, acquired, or arising, and wherever located, and including, without limitation, all of New Borrower’s
assets (excluding Intellectual Property), and all of New Borrower’s books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements
to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. New Borrower further covenants and
agrees that by its execution hereof it shall provide all such information, complete all such forms, and take all such actions,
and enter into all such agreements, in form and substance reasonably satisfactory to Bank that are reasonably deemed necessary
by Bank in order to grant a valid, perfected first priority security interest to Bank in the Collateral. New Borrower hereby authorizes
Bank to file financing statements, without notice to New Borrower, with all appropriate jurisdictions and filing offices in order
to perfect or protect Bank’s interest or rights hereunder, including a notice that any disposition of the Collateral, by
either New Borrower or any other Person, shall be deemed to violate the rights of Bank under the Code. Any such financing statements
may indicate the Collateral as “all assets of the Debtor” or words of similar effect, or as being of an equal or lesser
scope, or with greater detail, all in Bank’s discretion. Upon Borrower’s written request, Bank shall provide Borrower
with copies of the filed financing statements.


 






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3.
Representations and Warranties. New Borrower hereby represents and warrants to Bank that all representations and
warranties in the Loan Documents made on the part of Existing Borrower are true and correct in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and
correct as of such date) with respect to New Borrower, with the same force and effect as if New Borrower were named as the “Borrower”
in the Loan Documents.


 


4. Delivery of Documents. New Borrower hereby agrees that the following shall be delivered to Bank prior to or concurrently
with this Assumption Agreement, each in form and substance satisfactory to Bank:


 


		A.	a limited liability company borrowing certificate for New Borrower with respect to New Borrower’s
certificate of formation, operating agreement, incumbency and resolutions authorizing the execution and delivery of this Assumption
Agreement and the other documents required by Bank in connection with this Assumption Agreement;



 


		B.	the Operating Documents and long-form good standing certificate of New Borrower certified by the
Secretary of State Delaware as of a date no earlier than thirty (30) days prior to the date hereof;



 


		C.	duly executed signatures to a Cash Pledge Agreement, in form and substance acceptable to Bank;
and



 


		D.	such other documents as Bank may reasonably request.



 


5. Amendments to Loan Agreement.


 


5.1 Section
6.12 (Post-Closing Deliverables). Section 6.12 is amended in its entirety and replaced with the following:


 


“6.12 Post-Closing
Deliverables. Deliver to Bank, within forty-five (45) days after the Third Amendment Effective Date, a Perfection Certificate
of New Borrower, together with the duly executed signature thereto.”


 


5.2 Section
13.1 (Definitions). The following term and its respective definition set forth in Section 13.1 is amended in its entirety and
replaced with the following:


 


“    “Motus
GI” is Motus GI, LLC, a Delaware limited liability company.”


 


5.3 Section
13.1 (Definitions). The following new term and its respective definition set forth in Section 13.1 is hereby inserted alphabetically
in Section 13.1:


 


“   “Third
Amendment Effective Date” is January 4, 2021.”


 






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5.4 Exhibit
B (Compliance Certificate). The Compliance Certificate appearing as Exhibit B to the Loan Agreement is deleted in its entirety
and replaced with the Compliance Certificate attached as Schedule 1 attached hereto.


 


5.5 Exhibit
C (Loan Payment/Advance Request Form). The Loan Payment/Advance Request Form appearing as Exhibit C to the Loan Agreement is
deleted in its entirety and replaced with the Loan Payment/Advance Request Form attached as Schedule 2 attached hereto.


 


6. Limitation of Amendments.


 


6.1 The
amendments set forth in Section 5 above, are effective for the purposes set forth herein and shall be limited precisely as written
and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan
Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have in the future under or in connection
with any Loan Document.


 


6.2 This
Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall
remain in full force and effect.


 


7. Fees and Bank Expenses. New Borrower shall reimburse Bank for all legal fees and expenses incurred in connection
with this Assumption Agreement and other documents to be executed in connection herewith.


 


8. Choice of Law, Venue and Jury Trial Waiver. Massachusetts law governs this Assumption Agreement without regard to
principles of conflicts of law. New Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts
in Massachusetts, provided, however, that nothing in this Assumption Agreement shall be deemed to operate to preclude Bank from
bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of Bank. NOTWITHSTANDING THE FOREGOING, BANK SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST NEW BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE BANK’S RIGHTS AGAINST NEW BORROWER
OR ITS PROPERTY.


 


NEW BORROWER AND BANK
EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS ASSUMPTION AGREEMENT,
THE LOAN AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS ASSUMPTION AGREEMENT. EACH PARTY HAS REVIEWED
THIS WAIVER WITH ITS COUNSEL.


 


9. Consistent Changes. The existing Loan Documents are hereby amended wherever necessary to reflect the changes described
above.


 






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10. Ratification of Loan Documents. Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of all
security or other collateral granted to Bank, and confirms that the indebtedness secured thereby includes, without limitation,
the Obligations.


 


11. No Defenses of Borrower. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims,
or counterclaims against Bank with respect to the Obligations, or otherwise, and that if Borrower now has, or ever did have, any
offsets, defenses, claims, or counterclaims against Bank, whether known or unknown, at law or in equity, all of them are hereby
expressly WAIVED and Borrower hereby RELEASES Bank from any liability thereunder.


 


12. Continuing Validity. Borrower understands and agrees that in modifying the existing Obligations, Bank is relying
upon Borrower’s representations, warranties, and agreements, as set forth in the existing Loan Documents. Except as expressly
modified pursuant to this Assumption Agreement, the terms of the existing Loan Documents remain unchanged and in full force and
effect. Bank’s agreement to modifications to the existing Obligations pursuant to this Assumption Agreement in no way shall
obligate Bank to make any future modifications to the Obligations. Nothing in this Assumption Agreement shall constitute a satisfaction
of the Obligations. It is the intention of Bank and Borrower to retain as liable parties all makers of existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be released by virtue of this Assumption Agreement.


 


13. Countersignatures. This Assumption Agreement shall become effective only when it shall have been executed by New
Borrower and Bank. This Assumption Agreement may be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, are an original, and all taken together, constitute one agreement. Each
party hereto may execute this Assumption Agreement by electronic means and recognizes and accepts the use of electronic signatures
and records by any other party hereto in connection with the execution and storage hereof.


 


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This Assumption Agreement
is executed as of the date first written above.


 


	 	NEW BORROWER:
	 	 
	 	MOTUS GI, LLC
	 	 	 
	 	By:	/s/ Timothy P. Moran
	 	Name:	Timothy P. Moran
	 	Title:	Chief Executive Officer
	 	 	 
	 	EXISTING BORROWER:
	 	 
	 	MOTUS GI, INC.
	 	 	 
	 	By:	/s/ Timothy P. Moran
	 	Name: 	Timothy P. Moran
	 	Title:	Chief Executive Officer
	 	 	 
	 	HOLDINGS:
	 	 
	 	MOTUS GI HOLDINGS, INC.
	 	 	 
	 	By:	/s/ Timothy P. Moran
	 	Name:	Timothy P. Moran
	 	Title:	Chief Executive Officer
	 	 	 
	 	BANK:
	 	 
	 	SILICON VALLEY BANK
	 	 	 
	 	By:	/s/ Sam Subilia
	 	Name:	Sam Subilia
	 	Title:	Director


 




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Schedule 1


 


EXHIBIT B


 


COMPLIANCE CERTIFICATE


 


	TO:	 SILICON VALLEY BANK	Date:  _____________________


 


		FROM:	MOTUS GI HOLDINGS, INC.



MOTUS GI, LLC.


 


The undersigned authorized
officer of MOTUS GI HOLDINGS, INC. and MOTUS GI, LLC. (individually and collectively, jointly and severally, “Borrower”)
certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”):


 


(1) Borrower is
in complete compliance for the period ending _______________ with all required covenants except as noted below; (2) there
are no Events of Default; (3) all representations and warranties in the Agreement are true and correct in all material respects
on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations
and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such
date; (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has
timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise
permitted pursuant to the terms of Section 5.8 of the Agreement; and (5) no Liens have been levied or claims made against
Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided
written notification to Bank.


 


Attached are the required
documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently
applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that
no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of
the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but
not otherwise defined herein shall have the meanings given them in the Agreement.


 


	Please indicate compliance status by circling Yes/No under “Complies” column.
	 
	Reporting Covenants	Required	Complies
	 	 	 
	Monthly financial statements 	Monthly within 30 days	Yes   No
	Compliance Certificate	Monthly within 30 days	Yes   No
	Annual financial statement (CPA Audited)	FYE within 180 days	Yes   No
	Board approved projections	Within 90 days after FYE	Yes   No
	10-Q, 10-K and 8-K	Within 5 days after filing with SEC	Yes   No


 


	 	Required	Actual	Complies
	 	 	 	 
	Liquidity Requirement (to be maintained at all times)	at least $10,000,000.00	$_______	Yes   No


 






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Other Matters


 


	Have there been any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries?  If yes, provide copies of any such amendments or changes with this Compliance Certificate.	Yes	No


 


The following are
the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)


 


 






 


	MOTUS GI HOLDINGS, INC.	 	BANK USE ONLY
	 	 	 
	 	 	Received by:  	         
	By: 	         	 	 	authorized signer
	Name:  	 	 	Date: 	 
	Title: 	 	 	 
	 	 	Verified: 	                   
	MOTUS GI, LLC	 	 	authorized signer
	 	 	Date: 	 
	 	 	 
	By: 	                 	 	Compliance Status:  Yes     No
	Name:  	 	 	 
	Title: 	 	 	 
	 	 	 




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Schedule 1 to Compliance Certificate


 


Financial Covenants of Borrower


 


In the event of a conflict
between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall govern.


 


Dated: ____________________


 


	I.		Liquidity (Section 6.7)



 


Required:At all times, Borrower shall
maintain unrestricted and unencumbered cash in accounts with Bank in an amount equal to at least Ten Million Dollars ($10,000,000.00).


 


Actual:


 


	A.	Unrestricted and unencumbered cash in accounts with Bank	$                             


 


Is Line A equal to or greater than or equal
to $10,000,000.00?


 


	______ No, not in compliance	______  Yes, in compliance



 



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Schedule 2


 


EXHIBIT C – LOAN PAYMENT/ADVANCE
REQUEST FORM


 


Deadline
for same day processing is 1:00 PM EASTERN Time


 


	Fax To:  	Date: _____________________


 




 


Loan
Payment:           MOTUS GI HOLDINGS, INC. and MOTUS GI, LLC.


 


From Account #__________________________________  To Account
#____________________________________


                (Deposit Account #)                                                                   (Loan
Account #)


 


Principal $_____________________________________ and/or Interest
$____________________________________


 


Authorized Signature:________________________________ Phone Number:
_________________________________


 


Print Name/Title: ____________________________


 





 




Loan Advance:


 


Complete Outgoing Wire Request section below if all or
a portion of the funds from this loan advance are for an outgoing wire.


 


From Account #_____________________________  To Account
#_________________________________________


           (Loan Account #)                                                                   (Deposit
Account #)


 


Amount of Term Loan Advance $___________________________


 


All Borrower’s representations and warranties in the Loan
and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided,
however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring
to a specific date shall be true, accurate and complete in all material respects as of such date:


 


Authorized Signature:________________________________   Phone
Number: ________________________________


 


Print Name/Title: ___________________________


 





 




Outgoing Wire Request:


 


Complete only if all or a portion of funds from the loan
advance above is to be wired.


 


Deadline for same day processing is 1:00 PM, Eastern Time


 


Beneficiary Name: __________________________                 Amount
of Wire: $_________________________________


Beneficiary Bank: __________________________                  Account
Number: _________________________________


City and State: ___________________________


Beneficiary Bank Transit (ABA) #: ____________                     Beneficiary
Bank Code (Swift, Sort, Chip, etc.): ____________


       (For International Wire Only)


Intermediary Bank: _______________________                       Transit
(ABA) #: __________________________________


For Further Credit to: ______________________________________________________________________________


Special Instruction: _______________________________________________________________________________


 


By signing below, I (we) acknowledge and agree that my (our)
funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s)
covering funds transfer service(s), which agreements(s) were previously received and executed by me (us).


 


Authorized Signature: ________________________               2nd
Signature (if required): __________________________


Print Name/Title: _________________________                      Print
Name/Title: _________________________________


Telephone #: __________________________                          Telephone
#: ____________________________________




 


 

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