Exhibit 10.3
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS
CONVERTIBLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") AND,
ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE
$5,000,000.00
October 11, 2006
This Note amends and restates, and is given in substitution for,
that certain
Convertible Promissory Note of the Debtor to the order of the
Creditor dated
January 24, 2006 in the original principal amount of
$5,000,000.
FOR VALUE RECEIVED, the undersigned, Biophan Technologies, Inc., a
corporation
organized under the laws of the State of Nevada, with its principal
offices at
150 Lucius Gordon Drive, Suite 215, West Henrietta, New York 14586
(the
"Debtor"), hereby promises to pay to Biomed Solutions, LLC, a
limited liability
corporation organized under the laws of the State of New York, with
its
principal offices 150 Lucius Gordon Drive, Suite 215, West
Henrietta, New York
14586 (the "Creditor"), the principal sum of five million
dollars
($5,000,000.00) or such lesser amount as shall have been advanced
pursuant to
the Line of Credit Agreement dated as of January 24, 2006 between
the Debtor and
the Creditor, as amended by Amendment No. 1 thereto dated as of
October 10, 2006
(the "Line of Credit Agreement"), together with interest thereon at
a rate of
eight percent (8%) per annum, in lawful money of the United States
of America.
1. Repayment. The entire amount of principal and interest due under
this Note
shall be payable within fifteen (15) business days after demand
therefor, which
demand may be made at any time after eighteen (18) months has
elapsed from the
date of the issuance of this Note. Debtor may prepay all or any
part of this
Note at any time without premium or penalty, provided that Debtor
has provided
fifteen (15) days' prior written notice (the "Notice Period") of
its intent to
prepay and Creditor has not elected to convert all or part of the
outstanding
obligation prior to the expiration of the Notice Period.
2. Interest Calculations. Interest under this Note shall be
compounded monthly.
Partial payments shall be applied first to accrued and unpaid
interest and then
to principal.
3. Events of Default. Upon the occurrence and during the
continuance of any of
the following events (each of which shall be an "Event of
Default"), Creditor
may declare the principal of and interest on this Note to be due
and payable
upon thirty (30) days' prior written notice, and the principal of
and interest
on this Note shall, upon such declaration, become due and payable,
anything in
this Note to the contrary notwithstanding:
(a) Debtor fails to pay any principal of or interest on this
Note
when due; or
(b) Debtor is dissolved or liquidated; or
(c) Debtor makes an assignment for the benefit of creditors,
commences (as the debtor) a case in bankruptcy, or commences (as
the debtor) any
proceeding under any other insolvency law; or
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(d) A case in bankruptcy or any proceeding under any other
insolvency law is commenced against Debtor (as the debtor) and a
court having
jurisdiction in the premises enters a decree or order for relief
against Debtor
as the debtor in such case or proceeding, and such case or
proceeding is
continued for sixty (60) days, or Debtor consents to or admits the
material
allegations against it in any such case or proceeding; or
(e) A trustee, receiver or ag
