AMENDED AND RESTATED
PROMISSORY NOTE
The
undersigned, Bioheart, Inc. , a Florida corporation with its
principal place of business at 13794 NW 4 th 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 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.
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 April 1, 2009,
three (3) monthly payments of interest only (paid in arrears)
of $ 31,519.25 each, (each, an “Interest Only
Payment”) and (ii) commencing on July 1, 2009,
twelve (12) payments of principal and interest (paid in
arrears) in the amount of $ 262,692.21 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 L
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