cytx-ex1044_276.htm

This SECOND AMENDMENT TO LEASE AGREEMENT (“Amendment”) is entered into as of September 7, 2017 (“Effective Date”), by and between 6262 LUSK INVESTORS LLC, a California limited liability company (“Landlord”), and CYTORI THERAPEUTICS, INC., a Delaware corporation (“Tenant”), with reference to the facts set forth in the Recitals below.

A.Landlord and Tenant are parties to that certain Lease Agreement dated as of February 27, 2017, as amended by that certain letter agreement dated July 14, 2017, and executed by Tenant on July 27, 2017, and that certain First Amendment to Lease Agreement dated as of July 27, 2017 (collectively, “Lease”), for certain Premises known as Suite 200 within the Project located at 10222 Barnes Canyon Road (formerly known as 6262 Lusk Boulevard), San Diego, California 92121, as more particularly described in the Lease.

B.As an accommodation to Tenant, Landlord has agreed to (i) extend the Scheduled Commencement Date provided in Section 1.10 of the Lease from November 1, 2017, to January 1, 2018, and (ii) make corresponding modifications to the Work Schedule for construction of the Tenant Improvements (as defined in the Work Letter Agreement attached to the Lease).

C.Landlord and Tenant now desire to modify the Lease as set forth below in this Amendment.

NOW, THEREFORE, in consideration of the Recitals above, the mutual covenants and conditions below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Scheduled Commencement Date. Notwithstanding any provision of the Lease to the contrary, the “Scheduled Commencement Date” shall be January 1, 2018.

2.Work Schedule. Notwithstanding any provision of the Lease to the contrary, the “Work Schedule” for the Tenant Improvements shall mean the schedule attached hereto as Exhibit “A”.

3.Excess Costs. Notwithstanding any provision of the Lease to the contrary, Tenant shall be obligated to pay to Landlord as Excess Costs (as defined in Section 2 of the Work Letter Agreement) the incremental increase in the total costs and expenses incurred by Landlord to construct the Tenant Improvements in accordance with the modified Work Schedule.

4.Defined Terms. Unless otherwise specifically defined in this Amendment, terms with initial capital letters in this Amendment shall have the same meaning as such terms have in the Lease.

5.Interpretation. Landlord and Tenant acknowledge and agree that each of them, and their respective professional advisors, have reviewed this Amendment and that the provisions of this Amendment shall not be construed against either party. The rule of construction that ambiguities are to be construed against the party drafting the agreement shall not apply to the interpretation of this Amendment and is waived.

6.Counterpart Execution. This Amendment may be executed in multiple counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall constitute one instrument.

7.Continued Effect. Except as specifically modified by this Amendment, all of the terms, conditions and provisions of the Lease shall remain in full force and effect, including, without limitation, Tenant’s obligation to increase the Letter of Credit Amount to Five Hundred Thousand and 00/100 Dollars ($500,000.00) on November 1, 2017, pursuant to Section 7.1 of the Lease. Concurrently with the execution and delivery of this Amendment, Tenant shall pay to Landlord the first monthly installment of Rent (i.e., $71,970.36) in accordance with Section 5.1 of the Lease.

IN WITNESS WHEREOF, the parties have executed this Second Amendment to Lease Agreement as of the Effective Date.

LANDLORD:

6262 LUSK INVESTORS LLC,

a California limited liability company

By:B/L Lusk LLC,

a California limited liability company,

Managing Member

By: _/s/ Steve Bollert____________

Name: _Steve Bollert____________

Title: __Managing Member_______

TENANT:

CYTORI THERAPEUTICS, INC.,