Fourth Amendment to Loan and Security Agreement dated December 31, 2018, by and between Cytori Therapeutics, Inc. and Oxford Finance, LLC

Exhibit 10.52

FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT

THIS FOURTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is made effective as of December 31, 2018 (the “Amendment Date”) and made, by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (in its individual capacity, “Oxford”; and in its capacity as Collateral Agent, “Collateral Agent”), the Lenders listed on Schedule 1.1 thereof from time to time including Oxford in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”) and CYTORI THERAPEUTICS, INC., a Delaware corporation with offices located at 3020 Callan Road, San Diego, CA  92121 (“Borrower”).

WHEREAS, Collateral Agent, Borrower and Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of May 29, 2015 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof; and

WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:

(b)Repayment.  Borrower shall make monthly payments of interest only commencing on the first (1^st) Payment Date following the Funding Date of each Term Loan, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the Amortization Date.  Borrower agrees to pay, on the Funding Date of each Term Loan, any initial partial monthly interest payment otherwise due for the period between the Funding Date of such Term Loan and the first Payment Date thereof.  Commencing on the Amortization Date, and continuing on the Payment Date of each month thereafter, Borrower shall make consecutive monthly payments of principal (except that no payments of principal shall be made on the Payment Dates from September 1, 2017 through December 1, 2017; provided, further, that upon the occurrence of the I/O Extension Event payments of principal shall also not be made on the Payment Dates from January 1, 2018 through August 1, 2018) and applicable interest (regardless of whether or not on any given Payment Date a principal payment is due hereunder), in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the amount of such Lender’s Term Loan, (2) the effective

rate of interest, as determined in Section 2.3(a), and (3) a repayment schedule equal to forty-two (42) months (except that as set forth above, no payments of principal shall be made on the Payment Dates from September 1, 2017 through August 1, 2018; provided, further, that payments of principal shall also not be made on the Payment Dates from September 1, 2018 through March 1, 2019).  The principal payments due hereunder shall be as set forth on the amortization table (as amended from time to time) attached to the Disbursement Letter entered into on the Effective Date.  The Final Payment and all unpaid principal and accrued and unpaid interest with respect to each Term Loan are due and payable in full on the Maturity Date.  Each Term Loan may only be prepaid in accordance with Sections 2.2(c) and 2.2(d).

(d)Permitted Prepayment of Term Loan.  Borrower shall have the option to prepay all, but, subject to the second paragraph of this Section 2.2(d), not less than all, of the Term Loan advanced by the Lenders under this Agreement, provided Borrower, subject to the second paragraph of this Section 2.2(d), (i) provides written notice to Collateral Agent of its election to prepay the Term Loan at least fifteen (15) days prior to such prepayment, and (ii) pays to the Lenders on the date of such prepayment, payable to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of (A) all outstanding principal of the Term Loan plus accrued and unpaid interest thereon through the prepayment date, (B) the Final Payment, (C) the Prepayment Fee, plus (D) all other Obligations that are due and payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts.

Notwithstanding anything herein to the contrary, Borrower shall promptly pay to each Lender (in accordance with its Pro Rata Share) (i) 75% of all proceeds received by Borrower from the issuance and sale by Borrower of its unsecured subordinated convertible debt, (ii) 75% of all proceeds received by Borrower in connection with a joint venture, collaboration or other partnering transaction, (iii) 75% of all proceeds received by Borrower in connection with any licenses, (iv) 75% of all proceeds received by Borrower in the form of dividends (other than non-cash dividends received from wholly owned Subsidiaries of Borrower) and (v) all net proceeds received by Borrower from sale or transfer of any assets of Borrower (provided; nothing in this Section 2.2(d) is a consent to or meant to be construed as a consent to any disposition of any assets of Borrower not otherwise permitted by this Agreement).    For the purposes of clarification, proceeds received from sale and issuance by Borrower of its equity securities (which are not in the form of convertible debt) shall not be subject to the payment obligations of Borrower under the immediately preceding sentence.  All such payments shall be applied to (A) payment of a portion of the outstanding principal of the Term Loans plus all accrued and unpaid interest thereon outstanding on such portion being prepaid, (B) the applicable Final Payment with respect to the portion of such Term Loans being prepaid, and (C) the applicable Prepayment Fee with respect to the portion of such Term Loans being prepaid.  For the purposes of clarity, any partial prepayment of Term Loans hereunder shall be applied pro-rata to all outstanding amounts under each Term Loan, and shall be applied

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pro-rata within each Term Loan tranche to reduce amortization payments under Section 2.2(b) on a pro-rata basis.

(h)  Fourth Amendment Fee.  A fully earned and non-refundable fourth amendment fee in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00) which shall become due and payable upon the earlier of: (i) the Maturity Date, (ii) the acceleration of any Term Loan, or (iii) the prepayment of a Term Loan pursuant to Section 2.2(c) or (d).

Borrower shall at all times maintain unrestricted cash and/or Cash Equivalents in Collateral Accounts subject to Control Agreements in favor of Collateral Agent in a minimum aggregate amount of Two Million Dollars ($2,000,000.00).

6.14 Entry into Agreement.  On or before January 31, 2019, one of the following: Asset Purchase Agreement Event, Equity Agreement Event or the Merger Agreement Event must have occurred in accordance with the terms of this Agreement; provided, however, nothing herein constitutes a consent by any Lender or Collateral Agent to any of the aforementioned.

(a) Borrower or any of its Subsidiaries fails or neglects to perform any obligation in Sections 6.2 (Financial Statements, Reports, Certificates), 6.4 (Taxes), 6.5 (Insurance), 6.6 (Operating Accounts), 6.7 (Protection of Intellectual Property Rights), 6.9 (Notice of Litigation and Default), 6.10 (Financial Covenant), 6.12 (Creation/Acquisition of Subsidiaries), 6.14 (Entry into Agreement) or Borrower violates any covenant in Section 7 or Section 13; or

“Asset Purchase Agreement Event” means the entry into an asset purchase agreement by Borrower, on and after December 21, 2018 and on or before January 31, 2019, which asset purchase agreement provides for the Transfer by Borrower to a third party of parts of Borrower’s business and/or property, with a minimum upfront gross proceeds to Borrower of Four Million Dollars ($4,000,000.00) upon the initial closing of such transaction, which must be contemplated to occur on or prior to March 31, 2019, and

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which agreement is in such form and substance as are acceptable and satisfactory to Collateral Agent and Required Lenders in their reasonable discretion.

“Equity Agreement Event” means the entry by Borrower, on and after December 21, 2018 and on or before January 31, 2019, into a binding agreement for the issuance and sale of its equity securities or unsecured convertible Subordinated Debt which would result unrestricted gross cash proceeds of not less than Seven Million Five Hundred Thousand Dollars ($7,500,000.00) to Borrower on or before March 31, 2019, and which agreement is in such form and substance as are acceptable and satisfactory to Collateral Agent and Required Lenders in their reasonable discretion.

“Merger Agreement Event” means the entry into a merger agreement by Borrower, on and after December 21, 2018 and on or before January 31, 2019, which merger agreement provides for the merger of Borrower with and into a third party pursuant to which all of the Obligations will be paid down to a level satisfactory to the Lenders and Collateral Agent in their sole discretion at the time of the consummation of the merger on or prior to March 31, 2019, and which agreement is in such form and substance as are acceptable and satisfactory to Collateral Agent and Required Lenders in their reasonable discretion but does not require the consent of the Required Lenders for Borrower’s entry thereinto under Section 7.3 of the Loan Agreement.

“Maturity Date” is June 1, 2020.

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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Loan and Security Agreement to be executed as of the date first set forth above.

Exhibit A

Amortization Table

Exhibit B

Compliance Certificate

The undersigned authorized officer (“Officer”) of Cytori Therapeutics, Inc. (“Borrower”), hereby certifies, in such capacity on behalf of Borrower, that in accordance with the terms and conditions of the Loan and Security Agreement by and among Borrower, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),

Attached are the required documents, if any, supporting our certification(s).  The Officer, on behalf of Borrower, further certifies that the attached financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements.  

Please indicate compliance status since the last Compliance Certificate by circling Yes, No, or N/A under “Complies” column.

Deposit and Securities Accounts

(Please list all accounts; attach separate sheet if additional space needed)

Financial Covenants

Other Matters

Exceptions

Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.”  Attach separate sheet if additional space needed.)

CYTORI THERAPEUTICS, INC.

By:  

Name:  

Title:  

Date: