Attached files
| file | filename |
|---|---|
| 8-K - U.S. Stem Cell, Inc. | d26006.htm |
| EX-10.16 - U.S. Stem Cell, Inc. | d26006_ex10-16.htm |
| EX-10.14 - U.S. Stem Cell, Inc. | d26006_ex10-14.htm |
AMENDED
AND RESTATED
PROMISSORY
NOTE
Dated:
December 31, 2009
The
undersigned, Bioheart,
Inc., a Florida corporation with its principal place of business at 13794
NW 4th
Street, Sunrise, FL 33325 (hereinafter referred to as "Borrower"), promises to
pay to BlueCrest Venture Finance Master Fund Limited ("Lender") or its registered
assigns Two Million
Nine Hundred Forty Three Thousand Four Hundred Thirty One and 78/100 Dollars
($2,943,431.78) at its office at PO Box 309, Ugland House, South Church Street,
George Town, Cayman Islands, or at such other place as Lender or its registered
assigns may appoint, plus interest thereon as set forth herein.
Commencing
as of December 1, 2009, interest on the principal amount outstanding under this
Amended and Restated Note (the “Note”) shall accrue at the rate equal to 12.85% per annum,
computed on the basis of a 360-day year of twelve 30-day months, and on the
assumption that each payment of principal shall be made in a timely manner (the
“Loan Interest Rate”).
Principal
and interest hereunder shall be payable on the first calendar day of each month,
or, if the first calendar day of any month is not a business day, then on the
next succeeding business day (each a “Payment Date”), in the amounts set forth
below. Borrower agrees to make (i) commencing on January 1, 2010, six (6)
monthly payments of interest only (paid in arrears) of $31,519.25 each,
(each, an “Interest Only Payment”) and (ii) commencing on July 1, 2010, twenty
four (24) payments of principal and interest (paid in arrears) in the
amount of $139,728.82 each,
(each, a "Periodic Payment") and continuing on each Payment Date thereafter
until the amounts of principal and interest owing under this Note are paid in
full; provided, however, that the final Periodic Payment shall additionally
include any accrued and unpaid interest and other charges then outstanding. The
foregoing payments include interest at the Loan Interest Rate, which is
precomputed for the period ending when such payments are due and on the
assumption that all payments will be made on their respective due
dates.
Any
Interest Only Payment or Periodic Payment which is past due for a period in
excess of five (5) days after its due date shall be overdue and shall be subject
to a service charge in an amount equal to two percent (2 %) of the delinquent
amount, but not more than the maximum rate permitted by law, whichever is less.
In addition, and notwithstanding the forgoing, during the continuance of an
Event of Default all outstanding Borrower Liabilities in respect of the Loan
Agreement (including the Term Loan evidenced by this Promissory Note) shall bear
interest (payable on demand) at a rate that is two percent (2%) per annum in
excess of the Loan Interest Rate (the “Default Interest Rate”) and the
monthly payment of principal and interest shall be recalculated at the Default
Interest Rate during such time. Borrower shall additionally be liable for any
reasonable costs or expenses incurred by Lender in collecting any sums due from
Borrower to Lender including all reasonable attorneys' fees and reasonable legal
expenses incurred by Lender if this note is placed with an attorney for
collection.
Demand,
presentment for payment, notice of non-payment and protest are hereby waived by
the undersigned.
This Note
is made by Borrower and delivered to Lender in relation to that certain Loan and
Security Agreement No. dated as of May 31, 2007 (“Loan Agreement”) by and
between Borrower and Lender, as assignee of BlueCrest Capital Finance, L.P. and
as amended from time to time, including by that certain an Amendment to Loan and
Security Agreement between Lender and Borrower, dated as of the date hereof
(collectively, the “Loan Agreement”). This Note amends and replaces Borrower’s
obligations pursuant to that certain Amended and Restated Promissory Note dated
July 1, 2009. Capitalized terms used herein but not defined shall have the
meaning ascribed to such terms in the Loan Agreement. This Note is
issued under the terms of and is entitled to the benefits of the Loan Agreement,
to which reference is hereby made for a statement of the nature and extent of
the protection and security afforded and the rights of the payee hereof and the
rights and obligations of the undersigned. Lender's books and records
shall be dispositive evidence of the amount disbursed pursuant to this Note and
the Loan Agreement.
Upon an
Event of Default, as defined in the Loan Agreement, this Note may become or be
declared due in the manner and with the effect provided in the Loan
Agreement.
Lender
(or its registered assigns) shall not be required to look to any collateral for
the payment of this Note, but may proceed against Borrower, or any guarantor
hereof in such manner as it deems desirable. None of the rights or
remedies of Lender (or its registered assigns) hereunder or under the Loan
Agreement are to be deemed waived or affected by any failure to exercise
same.
All
remedies conferred upon Lender (or its registered assigns) under this Note, the
Loan Agreement or any other instrument or agreement to which the undersigned or
any guarantor hereof is a party or under any or all of them is bound, shall be
cumulative and not exclusive, and such remedies may be exercised concurrently or
consecutively at the option of Lender or its registered assigns.
THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS AND
DECISIONS OF THE STATE OF ILLINOIS. AT THE ELECTION OF LENDER AND
WITHOUT LIMITING LENDER’S RIGHT TO COMMENCE AN ACTION IN OTHER JURISDICTION,
BORROWER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT
(FEDERAL, STATE OR LOCAL) HAVING SITUS WITHIN COOK COUNTY IN THE STATE OF
ILLINOIS, EXPRESSLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO SERVICE
BY CERTIFIED MAIL, POSTAGE PREPAID, DIRECTED TO THE LAST KNOWN ADDRESS OF
BORROWER, WHICH SERVICE SHALL BE DEEMED COMPLETED WITHIN TEN (10) DAYS AFTER THE
DATE OF MAILING HEREOF. BORROWER HEREBY WAIVES ANY RIGHT TO ASSERT
THAT ANY ACTION INSTITUTED BY LENDER OR BORROWER IN SUCH COURT IS AN IMPROPER
VENUE OR SUCH ACTION SHOULD BE TRANSFERRED TO A MORE CONVENIENT
FORUM. LENDER AND BORROWER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY.
BORROWER
AGREES THAT ALL PAYMENTS AND OTHER OBLIGATIONS DUE AND OWING UNDER THIS NOTE AND
EACH OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH SHALL BE PAID IN FULL
WITHOUT OFFSET OR DEDUCTION FOR ANY REASON, AND BORROWER HEREBY WAIVES ANY RIGHT
OF OFFSET ARISING FOR ANY REASON WITH RESPECT TO ANY PAYMENT OR OTHER OBLIGATION
DUE AND OWING UNDER THIS NOTE AND EACH OTHER DOCUMENT EXECUTED IN CONNECTION
HEREWITH.
IN WITNESS WHEREOF, the
undersigned hereunto sets its hand and seal as of the date first set forth
above.
Bioheart,
Inc.
Borrower
By:___________________________
Name:_________________________
Title:__________________________