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PARTIAL ASSIGNMENT AND MODIFICATION AGREEMENT

Assignment Agreement

PARTIAL ASSIGNMENT AND MODIFICATION AGREEMENT | Document Parties: BIOHEART, INC. | BIOHEART, INC | BlueCrest Capital Management Guernsey Limited | BlueCrest Venture Finance Master Fund Limited | Lotus Funding Group, LLC You are currently viewing:
This Assignment Agreement involves

BIOHEART, INC. | BIOHEART, INC | BlueCrest Capital Management Guernsey Limited | BlueCrest Venture Finance Master Fund Limited | Lotus Funding Group, LLC

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Title: PARTIAL ASSIGNMENT AND MODIFICATION AGREEMENT
Governing Law: Illinois     Date: 6/21/2011
Industry: Biotechnology and Drugs     Sector: Healthcare

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Exhibit 4.14

 

PARTIAL  ASSIGNMENT AND MODIFICATION AGREEMENT

 

This Partial Assignment and Modification Agreement (the “Agreement”) is made by and among BIOHEART, INC. (the “Issuer”), BlueCrest Venture Finance Master Fund Limited (“BlueCrest”) and Lotus Funding Group, LLC (the “Investor”), on June 15, 2011.  (The Issuer, BlueCrest and the Investor are sometimes referred to in this Agreement singly as a “Party” or collectively as the “Parties.”)

 

RECITALS

 

WHEREAS, the Issuer is indebted to BlueCrest in the principal amount of $1,687,303.71(the “Current Amount”) as of the date hereof as evidenced by the promissory note of even date (as amended, the “Note”), attached as Exhibit A, which was issued by the Issuer and is governed by the terms and conditions of that certain Amended and Restated Loan and Security Agreement, dated as of October 25, 2010 (as amended from time to time, the “BlueCrest Loan Agreement”);

 

WHEREAS, the Issuer desires to fulfill certain debt obligations due and payable to BlueCrest on June 1, 2011 in the amount of $139,728.82 (the “Debt”), and to accomplish such payment, the Issuer and BlueCrest have agreed to assign the Note in part, such that two notes would hereafter be outstanding, one in favor of BlueCrest having an aggregate principal amount equal to $1,565,643.10 (the Current Amount minus the principal portion of the Debt payment) and to be evidenced by the A Note, and another in favor of the Investor in the principal amount of $139,728.82 and to be evidenced by the B Note, copies of which are attached hereto, respectively as Exhibit B-1 and Exhibit B-2; and

 

WHEREAS, the Issuer and the Investor desire to exchange the B Note for the Unsecured, Subordinated Convertible Note attached hereto as Exhibit C; and

 

WHEREAS, to effectuate this understanding, the Parties agree to enter this Agreement;

 

NOW THEREFORE, in consideration of the mutual promises and agreements contained in this Agreement, and intending to be legally bound, the Parties agree as follows:

 

  

1.

Assignment of Debt.  In consideration for the payment by the Investor to BlueCrest of the sum of $139,728.82, BlueCrest hereby assigns and endorses to the Investor the B Note (the “Assignment”) in the form attached hereto as Exhibit B-2.

 

  

1.1.

The Investor hereby accepts the Assignment and the Issuer acknowledges the Assignment;

 

  

1.2.

The Issuer confirms that BlueCrest advanced funds to the Issuer represented by the Debt on or before December 2009, and agrees, acknowledges, consents and stipulates, that full consideration has been rendered for said Debt and hereby waives any and all objections thereto;

 

  

1.3.

THE INVESTOR ACKNOWLEDGES AND AGREES THAT BLUECREST SHALL HAVE NO LIABILITY TO THE INVESTOR IN THE EVENT OF DEFAULT BY THE ISSUER UNDER THIS AGREEMENT OR THE B NOTE.

 

  

2.

Conditions Precedent.  The Parties agree that each of the following conditions precedent shall be met before any of the transactions contemplated hereby are effective:

 

(i)  The Issuer shall have executed and delivered to BlueCrest, the A Note;

 

(ii)  The Issuer shall have executed and delivered to BlueCrest, the B Note; and

 

(iii) The Investor shall have delivered to BlueCrest, the Subordination Agreement.

 

 

3.    Exchange of B Note for Unsecured Subordinated Convertible Note.  Contemporaneously herewith, (i) Investor and Issuer agree that the B Note is hereby exchanged for the Unsecured Subordinated Convertible

 


 

Note executed and delivered by Issuer to Investor which replaces the B Note (and which B Note shall be cancelled); and (ii) the Issuer agrees to execute and deliver an amended and restated subordination agreement, in form and substance satisfactory to BlueCrest in its sole discretion (the “Subordination Agreement”).

 

 

 

  

4.

Jurisdiction and Venue.  The Parties agree that this Agreement shall be construed solely in accordance with the laws of the State of Illinois, notwithstanding its choice or conflict of law principles, and any proceedings arising among the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be heard solely in the State and/or Federal courts located in Chicago, Illinois.

 

  

5.

Legal Opinion.  The Issuer’s counsel has provided an opinion regarding the applicable exemption from registration under the Securities Act for the issuance of the Conversion Shares pursuant to the terms a


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