FIRST Amendment to air commercial real estate association standard industrial/commercial single-tenant lease --net

Exhibit 4.4

FIRST Amendment to air commercial real estate association
standard industrial/commercial single-tenant lease --net

This First Amendment to the AIR COMMERCIAL REAL ESTATE ASSOCIATION STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET (this “Amendment”) is dated as of April 13, 2015 (the “Effective Date”) by and between Xxxxx Xxxx Xxxxx Revocable Trust dated April 10, 2006 ("Lessor") and Cynogen Inc., a Delaware corporation (“Lessee”).

RECITALS

WHEREAS, Lessor and Lessee are parties to that certain AIR COMMERCIAL REAL ESTATE ASSOCIATION STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE – NET (the “Original Lease”), dated December 1, 2013, as amended by that certain ADDENDUM TO AIR COMMERCIAL REAL ESTATE ASSOCIATION STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE – NET (the “Addendum”) dated December 1, 2013 (the Original Lease as amended by the Addendum shall hereinafter be referred to as the “Lease”) for the lease of certain space consisting of approximately 28,700 rentable square feet as more particularly described in the Lease;

WHEREAS, Xxxxxx Laboratories executed and delivered to Landlord a certain AIR COMMERCIAL REAL ESTATE ASSOCIATION GUARANTY OF LEASE dated December 1, 2003 for the benefit of Landlord (the “Guaranty”);

WHEREAS, Rosetta Genomics Inc., a Delaware corporation (“Rosetta”) has agreed, under certain terms, to purchase the entity which owns one hundred percent (100%) of the issued and outstanding stock in Lessee, pursuant to a separate agreement;

WHEREAS, Lessee has requested, and Lessor has agreed, to release the Guaranty from Xxxxxx Laboratories and replace the Guaranty with a letter of credit, and to amend certain other provisions of the Lease as further provided herein;

NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree to amend the Lease as follows.

AGREEMENT

1. Definitions. Capitalized terms used in this Amendment shall have the same meanings ascribed to such capitalized terms in the Lease, unless otherwise provided for herein.

2. Security Deposit. Within two weeks of the execution of this Amendment, Rosetta will cause a standby letter of credit to be issued for the beneficiary of Lessor in the amount of $625,365.76 (the “Letter of Credit”) in form and substance reasonably acceptable to Lessor. The Letter of Credit shall be reasonably reduced from time to time by the amount of Base Rent plus Common Area Maintenance charges under the Lease paid by Lessee to Lessor from and after the date that the Letter of Credit is initially issued, but in no event shall the Letter of Credit be reduced to less than $77,525.04. The Letter of Credit shall be issued by a bank reasonably acceptable to Lessor whose deposits are insured by the FDIC. The Letter of Credit shall be unconditional, irrevocable, transferable, and payable to Lessor or Lessor’s agent solely upon presentment by Lessor or Lessor’s agent of a sight draft in person, by courier, overnight mail, or by facsimile transmission in partial or full draws. Lessor may draw on the Letter or Credit in whole or in part and use, apply, or retain the whole or any part of such proceeds, as the case may be, to the extent required for the payment of any rent, additional rent, damages, or any other sum payable by Lessee under the Lease if Lessee defaults in observing or performing any of the terms, provisions or conditions of the Lease on Lessee’s part to be observed or performed, after the expiration of applicable notice and cure periods under the Lease. If the Letter of Credit is lost, stolen, or mutilated, Lessee shall cooperate with Lessor, promptly upon Lessor’s request, to replace such Letter of Credit. If Lessee shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of the Lease, and delivers possession of the Premises to Lessor at the Expiration Date in the conditions required by the Lease, the Letter of Credit shall be returned to Lessee within 30 days after the Expiration Date. Lessor’s use of the Letter of Credit proceeds shall not be deemed a waiver of Lessee’s default or a waiver of any other rights and remedies to which Lessor may be entitled under the provisions of the Lease by reason of such default, it being intended that Lessor’s rights to use the whole or any part of the Letter of Credit proceeds shall be in addition to, but not in limitation of, any such other rights and remedies; and Lessor may exercise any of such other rights and remedies independent of or in conjunction with its rights hereunder.

3. Option to Terminate the Lease. Section 2 of the Addendum is hereby deleted and of no further force and effect. Commencing on the Effective Date, Lessee shall have no Termination Option relating to the Lease.

4. Installment Payments. As additional consideration for this Amendment, Lessee shall pay to Lessor, as additional Rent under the Lease, the sum of $150,000.00 in three installments as follows: (i) $50,000.00 on the Effective Date, (ii) $50,000.00 on or before the date which is 12 months from the Effective Date, and (iii) $50,000.00 on or before the date which is 24 months from the Effective Date, time being of the essence.

5. Sublease and Assignment.

A. Notwithstanding anything to the contrary set forth in Section 12 of the Original Lease and Section 4 of the Addendum, provided that Lessee is not then in default under the Lease after the expiration of applicable cure periods, Lessee shall have the right to sublet up to ten percent (10%) of the Premises without the consent of Lessor, provided that Lessee shall give not less than twenty (20) days prior written notice thereof to Lessor.

B. Commencing on the Effective Date, upon any assignment or transfer of all of Lessee’s interest in the Lease, whether a Permitted Transfer or done with the Lessor’s prior written consent in accordance with the Lease, Lessee shall have the right to substitute the Letter of Credit with a similar standby letter of credit or other comparable guaranty with terms at least equivalent to the Letter of Credit, in form and substance satisfactory to Lessor.

6. Security System. Lessor and Lessee agree to use commercially reasonable efforts to arrange for Lessee to (i) either contract directly with Landlord’s security system provider or install its own security system in and about the Building pursuant to Section 15 of the Addendum, in either event to provide that Lessee shall pay the costs thereof directly (rather than Lessor invoicing Lessee for the costs thereof), and (ii) incorporate the AT&T phone line currently dedicated for the security system into Lessee’s phone system.

7. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California (without regard to conflicts of law).

8. Ratification of Lease. Except as modified hereby, all other terms and conditions of the Lease remain unchanged and in full force and effect and are hereby ratified and confirmed by the parties hereto.

9. Entire Agreement. This Amendment, in conjunction with the Lease, constitutes the entire agreement of Lessor and Lessee with respect to the subject matter hereof and supersedes all oral and written agreements and understandings made and entered into by the parties prior to the date hereof.

10. Multiple Counterparts. This Amendment may be executed in multiple counterparts, all of which, when taken together, shall constitute one and the same instrument.

[Signatures on the Following Page]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date stated above.

	LESSOR:
	Xxxxx Xxxx Xxxxx Revocable Trust dated April 10, 2006
	By:	/s/ Xxxxx June Kitts
	Name:	Xxxxx Xxxx Xxxxx
	Title:	Trustee
	LESSEE:
	Cynogen, Inc.
	By:	/s/ Xxxx Xxxxxxxx
	Name:
	Title:
	ACCEPTED AND AGREED TO:
	Rosetta Genomics Inc.
	By:	/s/ X.X. Xxxxxx
	Name:	X.X. Xxxxxx
	Title:	President