EXHIBIT 10.1


 


Waiver


 


This WAIVER (this
“Waiver”) is made and entered into as of November 14, 2017 by and among Bacterin
International, Inc., a Nevada corporation (the “Borrower”), ROS
acquisition offshore lp, a Cayman Islands Exempted Limited Partnership (“ROS”), ORBIMED ROYALTY
OPPORTUNITIES II, LP, a Delaware limited partnership (“Royalty Opportunities”), and, in their capacity as
Guarantors under the Credit Agreement (as defined below), XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (“Holdings”),
X-SPINE SYSTEMS, INC., an Ohio corporation (“X-Spine” or the “Additional Delayed Draw Borrower”
and, together with the Borrower, the “Borrowers”) and XTANT MEDICAL, INC., a Delaware corporation (“Xtant”
and, along with Holdings and X-Spine, collectively, the “Guarantors”).


 


WHEREAS, the Borrowers,
ROS and Royalty Opportunities are party to that certain Amended and Restated Credit Agreement, dated as of July 27, 2015, as amended
by that certain First Amendment to Amended and Restated Credit Agreement, dated as of March 31, 2016, that certain Second Amendment
to Amended and Restated Credit Agreement, dated as of May 25, 2016, that certain Third Amendment to Amended and Restated Credit
Agreement, dated as of June 30, 2016, that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of July
29, 2016, that certain Fifth Amendment to the Amended and Restated Credit Agreement, dated as of August 12, 2016, that certain
Sixth Amendment to the Amended and Restated Credit Agreement, dated as of September 27, 2016, that certain Seventh Amendment to
the Amended and Restated Credit Agreement, dated as of December 31, 2016, that certain Eighth Amendment to Amended and Restated
Credit Agreement, dated as of January 13, 2017, that certain Ninth Amendment to Amended and Restated Credit Agreement, dated as
of January 31, 2017, that certain Tenth Amendment to Amended and Restated Credit Agreement, dated as of February 14, 2017, that
certain Eleventh Amendment to Amended and Restated Credit Agreement, dated as of February 28, 2017, that certain Twelfth Amendment
and Waiver to Amended and Restated Credit Agreement, dated as of March 31, 2017, that certain Thirteenth Amendment to Amended and
Restated Credit Agreement, dated as of April 30, 2017, that certain Fourteenth Amendment to Amended and Restated Credit Agreement,
dated as of May 11, 2017, that certain Fifteenth Amendment to Amended and Restated Credit Agreement, dated as of June 30, 2017,
that certain Sixteenth Amendment to Amended and Restated Credit Agreement, dated as of July 15, 2017, that certain Seventeenth
Amendment and Waiver to Amended and Restated Credit Agreement, dated as of August 11, 2017, that certain Eighteenth Amendment to
Amended and Restated Credit Agreement, dated as of September 29, 2017 and that certain Nineteenth Amendment to Amended and Restated
Credit Agreement, dated as of October 31, 2017 (the “Credit Agreement”), pursuant to which (i) ROS and Royalty
Opportunities, as Lenders under the Credit Agreement, have extended credit to the Borrowers on the terms set forth therein and
(ii) each Lender has appointed ROS as the administrative agent (the “Administrative Agent”) for the Lenders;


 


WHEREAS, the Guarantors
and the Administrative Agent entered into an Amended and Restated Guarantee, dated as of July 31, 2015 and supplemented on September
11, 2015, pursuant to which the Guarantors have agreed to guarantee the Obligations of the Borrowers under the Credit Agreement;


 






     


     


    

 


WHEREAS, pursuant
to Section 11.1 of the Credit Agreement, the provisions of the Credit Agreement may be waived by an instrument in writing signed
by each of the Borrowers and the Administrative Agent (acting on behalf of the Lenders); and


 


WHEREAS, the Borrowers
and the Lenders desire to waive certain provisions of the Credit Agreement as provided in this Waiver.


 


NOW, THEREFORE,
in consideration of the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.           Definitions; Loan Document. Capitalized terms used herein without definition shall have the meanings assigned
to such terms in the Credit Agreement. This Waiver shall constitute a Loan Document for all purposes of the Credit Agreement and
the other Loan Documents.


 


2.           Waiver. The Lenders hereby waive any non-compliance with the covenant set forth in Section 8.4(a) of the Credit
Agreement solely with respect to the Revenue Base for the Fiscal Quarter ended September 30, 2017.


 


3.           Conditions to Effectiveness of Waiver. This Waiver shall become effective upon receipt by the Borrowers, the
Administrative Agent, the Lenders and the Guarantors of a counterpart signature of the others to this Waiver duly executed and
delivered by each of the Borrowers, the Lenders, the Administrative Agent and the Guarantors.


 


4.           Expenses. The Borrowers agree to pay on demand all expenses of the Administrative Agent (including, without
limitation, the fees and out-of-pocket expenses of Covington & Burling LLP, counsel to the Administrative Agent) incurred in
connection with the Administrative Agent’s review, consideration and evaluation of this Waiver, including the rights and
remedies available to it in connection therewith, and the negotiation, preparation, execution and delivery of this Waiver.


 


5.           Representations and Warranties. The Borrowers and the Guarantors represent and warrant to each Lender as follows:


 


(a)           After giving effect to this Waiver, the representations and warranties of the Borrowers and the Guarantors contained in
the Credit Agreement or any other Loan Document shall, (i) with respect to representations and warranties that contain a materiality
qualification, be true and correct in all respects on and as of the date hereof, and (ii) with respect to representations and warranties
that do not contain a materiality qualification, be true and correct in all material respects on and as of the date hereof, and
except that the representations and warranties limited by their terms to a specific date shall be true and correct as of such date.


 


(b)           Before and after giving effect to this Waiver, no Default or Event of Default under the Credit Agreement has occurred or
will occur or be continuing.


 






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6.           No Implied Amendment or Waiver. Except as expressly set forth in this Waiver, this Waiver shall not, by implication
or otherwise, limit, impair, constitute a waiver of or otherwise affect any rights or remedies of the Administrative Agent or the
Lenders under the Credit Agreement or the other Loan Documents, or alter, modify, amend or in any way affect any of the terms,
obligations or covenants contained in the Credit Agreement or the other Loan Documents, all of which shall continue in full force
and effect. Nothing in this Waiver shall be construed to imply any willingness on the part of the Administrative Agent or the Lenders
to agree to or grant any similar or future amendment, consent or waiver of any of the terms and conditions of the Credit Agreement
or the other Loan Documents.


 


7.           Waiver and Release. TO INDUCE THE ADMINISTRATIVE AGENT, ACTING ON BEHALF OF THE LENDERS, TO AGREE TO THE TERMS
OF THIS WAIVER, THE BORROWERS, THE GUARANTORS AND THEIR AFFILIATES (COLLECTIVELY, THE RELEASING PARTIES”) REPRESENT
AND WARRANT THAT AS OF THE DATE HEREOF THERE ARE NO CLAIMS OR OFFSETS AGAINST OR RIGHTS OF RECOUPMENT WITH RESPECT TO OR DEFENSES
OR COUNTERCLAIMS TO THEIR OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE THEREWITH THEY:


 


(a)           WAIVE ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING
PRIOR TO THE DATE HEREOF; AND


 


(b)           FOREVER RELEASE, RELIEVE, AND DISCHARGE THE ADMINISTRATIVE AGENT, THE LENDERS, THEIR OFFICERS, DIRECTORS, SHAREHOLDERS,
MEMBERS, PARTNERS, PREDECESSORS, SUCCESSORS, ASSIGNS, ATTORNEYS, ACCOUNTANTS, AGENTS, EMPLOYEES, AND REPRESENTATIVES (COLLECTIVELY,
THE “RELEASED PARTIES”), AND EACH OF THEM, FROM ANY AND ALL CLAIMS, LIABILITIES, DEMANDS, CAUSES OF ACTION, DEBTS,
OBLIGATIONS, PROMISES, ACTS, AGREEMENTS, AND DAMAGES, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED,
CONTINGENT OR FIXED, LIQUIDATED OR UNLIQUIDATED, MATURED OR UNMATURED, WHETHER AT LAW OR IN EQUITY, WHICH THE RELEASING PARTIES
EVER HAD, NOW HAVE, OR MAY, SHALL, OR CAN HEREAFTER HAVE, DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY BASED UPON, CONNECTED
WITH, OR RELATED TO MATTERS, THINGS, ACTS, CONDUCT, AND/OR OMISSIONS AT ANY TIME FROM THE BEGINNING OF THE WORLD THROUGH AND INCLUDING
THE DATE HEREOF, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS AGAINST THE RELEASED PARTIES ARISING UNDER OR RELATED TO THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.


 


(c)           IN CONNECTION WITH THE RELEASE CONTAINED HEREIN, THE RELEASING PARTIES ACKNOWLEDGE THAT THEY ARE AWARE THAT THEY MAY HEREAFTER
DISCOVER CLAIMS PRESENTLY UNKNOWN OR UNSUSPECTED, OR FACTS IN ADDITION TO OR DIFFERENT FROM THOSE WHICH THEY KNOW OR BELIEVE TO
BE TRUE, WITH RESPECT TO THE MATTERS RELEASED HEREIN. NEVERTHELESS, IT IS THE INTENTION OF THE RELEASING PARTIES, THROUGH THIS
AGREEMENT AND WITH ADVICE OF COUNSEL, FULLY, FINALLY, AND FOREVER TO RELEASE ALL SUCH MATTERS, AND ALL CLAIMS RELATED THERETO,
WHICH DO NOW EXIST, OR HERETOFORE HAVE EXISTED. IN FURTHERANCE OF SUCH INTENTION, THE RELEASES HEREIN GIVEN SHALL BE AND REMAIN
IN EFFECT AS A FULL AND COMPLETE RELEASE OR WITHDRAWAL OF SUCH MATTERS NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF ANY SUCH ADDITIONAL
OR DIFFERENT CLAIMS OR FACTS RELATED THERETO.


 






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(d)           THE RELEASING PARTIES COVENANT AND AGREE NOT TO BRING ANY CLAIM, ACTION, SUIT, OR PROCEEDING AGAINST THE RELEASED PARTIES,
DIRECTLY OR INDIRECTLY, REGARDING OR RELATED IN ANY MANNER TO THE MATTERS RELEASED HEREBY, AND FURTHER COVENANT AND AGREE THAT
THIS AGREEMENT IS A BAR TO ANY SUCH CLAIM, ACTION, SUIT, OR PROCEEDING.


 


(e)           THE RELEASING PARTIES REPRESENT AND WARRANT TO THE RELEASED PARTIES THAT THEY HAVE NOT HERETOFORE ASSIGNED OR TRANSFERRED,
OR PURPORTED TO ASSIGN OR TRANSFER, TO ANY PERSON OR ENTITY ANY CLAIMS OR OTHER MATTERS HEREIN RELEASED.


 


8.           Counterparts; Governing Law. This Waiver may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of such when so executed and delivered shall be an original, but all of such counterparts
shall together constitute but one and the same agreement. Delivery of an executed counterpart of a signature page of this Waiver
by fax transmission or other electronic mail transmission (e.g., “pdf” or “tif”) shall be effective as
delivery of a manually executed counterpart of this Waiver. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK).


 


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of Page Intentionally Left Blank]


 




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IN WITNESS WHEREOF, the parties
hereto have caused this Waiver to be executed by their respective officers thereunto duly authorized as of the day and year first
above written.


 


	 	BACTERIN INTERNATIONAL, INC.,


as the Borrower



	 	 	 	 
	 	By:	/s/ Carl D. O’Connell	 
	 	 	Name: Carl D. O’Connell	 
	 	 	Title: Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	XTANT MEDICAL HOLDINGS, INC.,


(fka: Bacterin International Holdings, Inc.)


as a Guarantor



	 	 	 	 
	 	By:	/s/ Carl D. O’Connell	 
	 	 	Name: Carl D. O’Connell	 
	 	 	Title: Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	X-SPINE SYSTEMS, INC.,


as a Guarantor and the Additional Delayed Draw Borrower



	 	 	 	 
		By:	/s/ Carl D. O’Connell	 
	 	 	Name: Carl D. O’Connell	 
	 	 	Title: Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	XTANT MEDICAL, INC.,


as a Guarantor



	 	 	 	 
	 	By:	/s/ Carl D. O’Connell	 
	 	 	Name: Carl D. O’Connell	 
	 	 	Title: Chief Executive Officer	 
	 	 	 	 



 



    Signature Page to Waiver


     


    


 


		ROS Acquisition Offshore LP,
 as a Lender and as the Administrative Agent
	 	 	 	 
	 	By	OrbiMed Advisors LLC, solely in its
	 
	 	 	capacity as Investment Manager	 
	 	 	 	 
	 	By:	/s/ Sven H. Borho	 
	 	 	Name: Sven H. Borho	 
	 	 	Title:
Member
	 
	 	 	 	 
	 	ORBIMED ROYALTY OPPORTUNITIES II, LP,
 as a Lender
	 	 	 	 
	 	By	OrbiMed ROF II LLC,
	 
	 	 	its General Partner	 
	 	 	 	 
	 	By	OrbiMed Advisors LLC,	 
	 	 	its Managing Member	 
	 	 	 	 
	 	By:	/s/ Sven H. Borho	 
	 	 	Name: Sven H. Borho	 
	 	 	Title:
Member
	 



 



    Signature Page to Waiver