AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3
TO
This
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as
of December 31, 2009 is entered into by and among BlueCrest Venture Finance
Master Fund Limited, a Cayman Islands limited company as successor to BlueCrest
Capital Finance, L.P. (“Lender”), and
Bioheart, Inc., a Florida corporation (“Borrower”).
RECITALS
A. Borrower
and Lender are parties to the Loan and Security Agreement (No. V07107) dated as
of May 31, 2007, as amended by that certain Amendment to the Loan and Security
Agreement dated April 2, 2009 and that certain Amendment No. 2 to Loan and
Security Agreement dated as of July 1, 2009 (as amended, the “Loan Agreement”),
pursuant to which Lender has agreed to provide certain financial accommodations
to or for the benefit of Borrower upon the terms and conditions contained
therein. Capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Loan Agreement.
B. Borrower
has requested that Lender consider amending the Loan Agreement to restructure
certain terms and conditions thereof.
C. Lender
is willing to amend the Loan Agreement, on the terms and conditions set forth
herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Ratification
and Incorporation of Loan Agreement and Other
Agreements. Except as expressly modified by this Agreement,
Borrower hereby acknowledges, confirms and ratifies all of the terms and
conditions set forth in, and all of its obligations under, the Loan Agreement
and the Other Agreements. Without limiting the generality of the
foregoing, Borrower acknowledges and agrees that as of December 1, 2009, the
aggregate outstanding principal amount of the Term Loan was
$2,943,431.78. Borrower represents that it has no offset, defense,
counterclaim, dispute or disagreement of any kind or nature whatsoever with
respect to the amount of such indebtedness.
2. Amendments
to Loan Agreement.
2.1 Section
1.III of the Loan Agreement is hereby amended to read, in its entirety, as
follows:
“Warrants”
means the Warrant described in Section 2.5(b) of the Loan Agreement, together
with (i) the Warrant to purchase 1,315,542 shares of Borrower’s Common Stock at
a purchase price of $0.5321 per share issued to Lender on or about April 2,
2009, (ii) the Warrant to purchase 909,090 shares of Borrower’s Common Stock at
a purchase price of $0.66 per share issued to Lender on or about July 1, 2009,
and (iii) the Warrant to purchase $600,000.00 of the shares of Borrower’s Common
Stock at a purchase price equal to the average closing price over the five
trading days ending December 17, 2009 minus 10% issued to Lender on the date
hereof.
2.2 Section
2.1 of the Loan Agreement is hereby amended to read, in its entirety, as
follows:
Term Loan. On the
terms and subject to the conditions contained in this Loan Agreement, including
those listed in Section 2.5 hereof, Lender has loaned to Borrower on May 31, 2007, a term
loan (the “Term Loan”), in the original principal amount of Five Million Dollars
($5,000,000.00), the proceeds of which were to be used for working
capital. As of the date hereof, the current outstanding principal
balance of the Term Loan is $2,943,431.78. This is not a revolving
line of credit and Borrower may not repay and re-borrow the amounts advanced or
to be advanced under this Section 2.1(a). The Term Loan was initially
to be repaid in thirty-six (36) monthly scheduled installments as follows: (i)
commencing on the first Business Day of first full month after the date of the
Term Loan, and continuing on the first Business Day of the second full calendar
month and the third full calendar month after the date of the Term Loan, three
(3) monthly payments of interest only (paid in arrears); then (ii) commencing on
the first Business Day of the fourth full calendar month after the date of the
Term Loan and continuing on the first Business Day of each month thereafter,
thirty-three (33) equal monthly payments of principal and
interest. The Term Loan had previously been amended to be repaid as
follows: (i) commencing on July 1, 2009, six (6) monthly payments of interest
only (paid in arrears), then (ii) commencing on January 1, 2010, twenty four
(24) equal monthly payments of principal and interest (paid in arrears) in the
amount of $139,728.82 each. From and after the date hereof, the Term
Loan shall be repaid as follows: (i) commencing on January 1, 2010, six (6)
monthly payments of interest only (paid in arrears), then (ii) commencing on
July 1, 2010, twenty four (24) equal monthly payments of principal and interest
(paid in arrears) in the amount of $139,728.82 each. All such
payments are to be made on the first Business Day of relevant
month.
2.3 Section
5.1 of the Loan Agreement is hereby amended to read, in its entirety, as
follows:
Grant of Security
Interest. To further secure to Lender the prompt full and
faithful payment and performance of Borrower’s Liabilities and the prompt, full
and complete performance by Borrower of each of its covenants and duties under
this Loan Agreement and the Other Agreements, Borrower grants to Lender, a
valid, first priority continuing security interest in and lien upon all of the
following (except as to assets or property with Permitted Liens, upon which a
lien which may be other than a first priority lien is granted), whether now
owned or hereafter acquired and wherever located:
|
(i)
|
All
Receivables;
|
|
(ii)
|
All
Equipment;
|
|
(iii)
|
All
Fixtures;
|
|
(iv)
|
All
General Intangibles;
|
|
(v)
|
All
Intellectual Property;
|
|
(vi)
|
All
Inventory;
|
|
(vii)
|
All
Investment Property;
|
|
(viii)
|
All
Deposit Accounts and Securities Accounts (other than Account Numbers 2290
0834 6165 and 2290 0834 6178 of the Borrower at Bank of America (the “Bank
of America Aggregation Account” and the “Payroll Account”,
respectively));
|
|
(ix)
|
All
Cash;
|
|
(x)
|
All
Documents;
|
|
(xi)
|
All
other Goods and tangible and intangible personal property of Borrower,
whether now or hereafter owned or existing, leased, consigned by or to, or
acquired by, Borrower and wherever located,
and
|
|
(xii)
|
to
the extent not otherwise included, all Proceeds of each of the foregoing
and all accessions to, substitutions and replacements for, and rents,
profits and products of each of the foregoing and all attachments,
accessories, accessions, replacements, substitutions, additions or
improvements to any of the foregoing, wherever located and all products
and proceeds of the foregoing including without limitation proceeds of
insurance policies insuring the foregoing and all books and records with
respect thereto;
|
2
(all of
the foregoing personal property is hereinafter sometimes individually and
sometimes collectively referred to as “Collateral”). Notwithstanding anything
herein contained or construed to the contrary, Borrower is not granting to
Lender, and Lender is not receiving from Borrower and the term “Collateral”
shall not include, any grant of a security interest in the Bank of America
Aggregation Account (and any payments from the Credit Support Providers to the
Borrower under any of the Bank of America Loan Guarantee Agreements received
therein), or the Payroll Account. Borrower shall make appropriate
entries upon its financial statements and its books and records disclosing
Lender’s security interest in the Collateral.
Borrower
hereby further agrees that, except as expressly permitted herein including with respect to Permitted Liens,
Borrower shall not hereafter grant a security interest in or pledge any of its
Intellectual Property to any other party.”
3. Fee. Borrower
shall pay to Lender a fee (the “Commitment Fee”) in
the amount of $20,000, as provided in Section 5 below.
4. Conditions
to Effectiveness.
The
effectiveness of this Agreement shall be subject to satisfaction of each of the
following conditions:
4.1 Receipt
by Lender of a copy of this Agreement, and the Amended, Restated Promissory Note
in respect of the Term Loan (the “Amended Note”), and the Warrant noted in
Section 2.1 above to be issued on the date hereof, each duly authorized,
executed and delivered by Borrower; and
4.2 The
absence of any Default or Events of Default.
5. Covenants.
Borrower
covenants as follows:
5.1 Borrower
shall deliver to Lender on or before January 15, 2010, $10,000 of the Commitment
Fee;
5.2 Borrower
shall deliver to Lender on or before January 31, 2010, the remaining $10,000 of
the Commitment Fee; and
5.3 Borrower
shall cause to be delivered to Lender on or before January 31, 2010, an
Amendment to the Security Agreement (Intellectual Property) dated April 2, 2009,
in form and substance reasonably satisfactory to Lender.
Failure
to comply with the covenants in Sections 5.1 and 5.2 above in the timeframe
specified above (without any cure periods) shall constitute an Event of Default
under the Loan Agreement. Failure to comply with the covenant(s) in Section 5.3
above shall constitute an Event of Default under the Loan Agreement, but only if
such failure continues for three (35) Business Days after Borrower’s receipt of
written notice specifying such Default.
6. Representations
and Warranties. In order to induce Lender to enter into this
Agreement and amend the Loan Agreement in the manner provided in this Agreement,
Borrower represents and warrants to Lender as follows:
6.1 Power and
Authority. Borrower has all requisite corporate power and
authority to enter into this Agreement, the Amended Note, the Warrant and the
Amendment to Security Agreement (Intellectual Property) (collectively, the
“Amendment
Agreements”) and to
3
carry out
the transactions contemplated by, and perform its obligations under, the Loan
Agreement as amended by this Agreement (hereafter referred to as the “Amended Loan
Agreement”).
6.2 Authorization of
Agreements. The execution and delivery of the Amendment
Agreements by Borrower and the performance of the Amendment Agreements and the
Amended Loan Agreement by Borrower have been duly authorized by all necessary
action, and this Agreement has been duly executed and delivered by
Borrower.
6.3 Enforceability. Each
of the Amendment Agreements and the Amended Loan Agreement constitutes the
legal, valid and binding obligation of Borrower enforceable against Borrower in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles (whether enforcement is sought in
equity or at law).
6.4 No
Conflict. The execution and delivery by Borrower of the
Amendment Agreements and the performance by Borrower of each of the Amendment
Agreements and the Amended Loan Agreement do not and will not (i) to Borrower’s
knowledge, contravene, in any material respect, any provision of any law or
regulation, decree, ruling, judgment or order that is applicable to Borrower or
its properties or other assets, (ii) result in a breach of or constitute a
default under the charter, bylaws or other organizational documents of Borrower
or any material agreement, indenture, lease or instrument binding upon Borrower
or its properties or other assets or (iii) result in the creation or imposition
of any liens on its properties other than liens in favor of Lender granted by
the Amendment Agreements.
6.5 Governmental
Consents. Except as may be required by law, including, without
limitation, the Securities Act of 1934, as amended, no authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and performance
by Borrower of the Amendment Agreements.
6.6 Representations and
Warranties in the Loan Agreement. Borrower confirms that as of
the date hereof the representations and warranties contained in the Loan
Agreement and the Other Agreements are (before and after giving effect to this
Agreement) true and correct in all material respects (except (i) to the extent
any such representation and warranty is expressly stated to have been made as of
a specific date, in which case it shall be true and correct as of such specific
date; and (ii) that for purposes of determining the satisfaction of this
representation, no effect shall be given to any exception in such
representations and warranties relating to materiality) and that no Default or
Event of Default has occurred and is continuing.
7. Miscellaneous.
7.1 Effect of this
Agreement. Except as modified pursuant hereto, no other
changes or modifications to the Loan Agreement or Other Agreements are intended
or implied and in all other respects the Loan Agreement and Other Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of
the effective date hereof. To the extent of conflict between the
terms of this Agreement and the Loan Agreement or Other Agreements, the terms of
this Agreement shall control. The Loan Agreement and this Agreement
shall be read and construed as one agreement.
4
7.2 Costs and
Expenses. Borrower absolutely and unconditionally agrees to
pay to Lender, on demand by Lender at any time and as often as the occasion
therefor may require, whether or not all or any of the transactions contemplated
by this Agreement are consummated: all fees and disbursements of any counsel to
Lender in connection with the preparation, negotiation, execution, or delivery
of this Agreement and any agreements delivered in connection with the
transactions contemplated hereby and expenses which shall at any time be
incurred or sustained by Lender or any participant of Lender or any of their
respective directors, officers, employees or agents as a consequence of or in
any way in connection with the preparation, negotiation, execution, or delivery
of this Agreement and any agreements prepared, negotiated, executed or delivered
in connection with the transactions contemplated hereby, including any fees
payable in connection with filings necessary to perfect the security interests
granted to Lender hereunder.
7.3 Further
Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this
Agreement.
7.4 Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
7.5 Severability. Any
provision of this Agreement held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement.
7.6 Governing Law. Except
as otherwise expressly provided in the Loan Agreement or any of the Other
Agreements, this Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois without regard to the principles thereof
regarding conflicts of laws.
7.7 Counterparts. This
Agreement may be executed in identical counterpart copies, each of which shall
be an original, but all of which shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
7.8 Headings. Section
headings used herein are for convenience of reference only, are not part of this
Agreement, and are not to be taken into consideration in interpreting this
Agreement.
7.9 Recitals. The
recitals set forth at the beginning of this Agreement are true and correct, and
such recitals are incorporated into and are a part of this
Agreement.
IN
WITNESS WHEREOF, this Agreement is executed and delivered as of the day and year
first above written.
|
“Borrower”
|
“Lender”
|
|
By: _____________________________
Name:____________________________
Title: ____________________________
|
BLUECREST
VENTURE FINANCE MASTER FUND LIMITED
acting
through its duly appointed agent and investment manager,
BlueCrest
Capital Management LLP
By: ________________________________
Name: _______________________________
Title: ________________________________
|
