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
|
