Promissory Note


FLORIDA DOCUMENTARY STAMP
TAX REQUIRED BY LAW 

IN THE AMOUNT OF $2,450.00 HAS BEEN PAID OR WILL BE PAID 

DIRECTLY TO THE DEPARTMENT OF REVENUE. 

CERTIFICATE OF REGISTRATION NO. 60-8000911832-2


	
  

 	
  

 
	
 Date:
 October 25, 2010

 	
 Sunrise,
 Florida 

 
	
  

 	
  

 
	
 Amount:
 $980,000.00

 	
  

 






	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 Lender:

 	
  

 	
 Borrower:

 
	
  

 	
  

 	
  

 
	
 SEASIDE
 NATIONAL BANK & TRUST

 	
  

 	
 BIOHEART,
 INC., a Florida corporation

 
	
 201
 South Orange Avenue

 	
  

 	
 13794
 N.W. 4th Street

 
	
 Suite
 1350

 	
  

 	
 Suite
 212

 
	
 Orlando,
 Florida 32801

 	
  

 	
 Sunrise,
 Florida 33325

 
	
  

 	
  

 	
  

 


FOR VALUE RECEIVED, the undersigned Borrower
unconditionally (and jointly and severally, if more than one) promises to pay,
or cause to be paid, to the order of Lender, its successors and assigns,
without setoff, at its offices indicated at the beginning of this Note, or at
such other place as may be designated by Lender, the principal amount of Nine Hundred Eighty Thousand and 00/100 ($980,000.00)
Dollars, or so much thereof as may be advanced from time to time in
immediately available funds, together with interest computed daily on the
outstanding principal balance hereunder, at an annual interest rate (the
“Rate”), and in accordance with the payment schedule, indicated below. 


1.  Interest Rate. The Rate hereunder
shall be the Lender’s Prime Rate. The Prime Rate is the rate of interest
publicly announced from time to time by the Lender as its Prime Rate. The Prime
Rate is set by the Lender based on various factors, including the Lender’s
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans. The Bank may price loans to
its customers at, above, or below the Prime Rate. Any change in the Prime Rate
shall take effect at the opening of business on the day specified in the public
announcement of a change in the Lender’s Prime Rate. The Prime Rate is not necessarily
the lowest rate charged by Lender on its loans and is set by Lender in its sole
discretion. In no event shall the Rate be less than 4.25% per annum. If the
Prime Rate becomes unavailable during the term of the loan evidenced hereby
(the “Loan”), Lender may designate a substitute index after notifying Borrower.
Lender will tell Borrower the current Prime Rate upon Borrower’s request.


Notwithstanding any provision of this Note, Lender
does not intend to charge and Borrower shall not be required to pay any amount
of interest or other charges in excess of the maximum permitted by the
applicable law of the State of Florida; if any higher rate ceiling is lawful,
then that higher rate ceiling shall apply. Any payment in excess of such
maximum shall be refunded to Borrower or credited against principal, at the
option of Lender. 


2.  Accrual Method. Unless otherwise
indicated, interest at the Rate set forth above will be calculated by the
365/360 day method (a daily amount of interest is computed for a hypothetical
year of 360 days; that amount is multiplied by the actual number of days for
which any principal is outstanding hereunder). If interest is not to be
computed using this method, the method shall be N/A . 


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3.  Interest Rate Change Date. Any Rate based on
a fluctuating index or base rate will change, unless otherwise provided, each
time and as of the date that the index or base rate changes. If the Rate is to
change on any other date or at any other interval, the change shall be: N/A .
In the event any index is discontinued, Lender shall substitute an index
determined by Lender to be comparable, in its sole discretion. 


4.  Payment Schedule. All payments
received hereunder shall be applied first to the payment of any expense or
charges payable hereunder or under any other loan documents executed in
connection with this Note, then to interest due and payable, with the balance
applied to principal, or in such other order as Lender shall determine at its
option. 


Principal shall be paid in full in a single payment
364 days from the date hereof (the “Maturity Date”). Borrower shall make
mandatory quarterly payments of interest only in an amount equal to the
interest accrued on the balance of the Note. Interest payments shall be paid
every ninety (90) days, commencing ninety (90) days from the date hereof, with
a final payment of all unpaid interest at the stated maturity of this Note. 


Lender agrees and acknowledges that the right of
the Lender to receive payments hereunder and under the other Loan Documents are
subordinated to the rights of Bluecrest Venture Finance Master Fund Limited, as
assignee of BlueCrest Capital Finance, L.P. (“BlueCrest”) to receive payments
from the Borrower of all amounts (including, without limitation, principal,
interest, and prepayment premiums, if any), under that Promissory Note, dated
as of December 31, 2009, made by Borrower in favor of BlueCrest, and the
related Loan and Security Agreement by and between Borrower and BlueCrest;
provided, that, the foregoing subordination is not applicable to, and Lender
shall have the first priority lien and security interest in: (i) the amounts
held in the Reserve Account of Borrower with Lender (as further described in
the Loan Agreement); (ii) Lender’s right to proceed against the certificates of
deposit under the Certificate of Deposit pledged under the CD Account
Agreements (as further described in the Loan Agreement; or (iii) Lender’s
rights to proceed against any other Collateral to secure Borrower’s obligations
hereunder and the other Loan Documents. 


5.  Non-Revolving Feature. This Note
evidences a term loan, fully advanced at time of closing. Borrower may borrow,
repay, but not reborrow hereunder.


6.  Conditions to Maturity Date
Extension. If there exists no event of default, or event which with the passing of
time or giving of notice would constitute an event of default, under this Note,
the Loan Agreement or any other Loan Documents, then upon written notification
to Lender no later than thirty (30) days prior to the Maturity Date, Lender may
agree to allow Borrower to renew the term of this Note, subject to Borrower’s
continued banking relationship with Lender, as well as the continued
satisfactory financial condition of the Borrower, in Lender’s sole and absolute
discretion.


7.  Tender of Payment. Borrower hereby
authorizes Lender automatically to deduct from any interest reserve to be
established under the Loan Agreement (the “Reserve Account”) the amount of any
Loan payment. All payments on this Note are payable on or before 2:00 p.m. on
the due date thereof, at the office of the Lender specified above and shall be
credited on the date the funds become available lawful money of the United
States. Notwithstanding the foregoing and subject to the terms and conditions
of the Loan Agreement, payments of interest made on the Loan from the Reserve
Account shall be made as a direct charge by Lender, without notice to or
further authorization from Borrower, against such Reserve Account, with
Borrower obligated to pay all interest on the loan in excess of the amounts
available under the interest reserve. If the funds in the account are
insufficient to cover any payment, Lender shall not be obligated to advance
funds to cover the payment. At any time and for any reason, Borrower or Lender
may voluntarily terminate Automatic Payments. 


8. Termination of Automatic
Payments. In the event that Borrower terminates the Automatic Payment
arrangement with Lender, Borrower agrees that the interest rate under the Note
will increase, at the discretion of the Lender, by one-half percentage point
(0.50%) per annum over the rate of interest stated in the Note, and the amount
of each interest installment will be increased accordingly. The effective rate
of interest under the Note shall not in any event exceed the maximum rate
permitted by law. 


9. Waivers, Consents and Covenants. Borrower, any
indorser or guarantor hereof, or any other party executing a Loan Document that
supports and/or secures payment of this Note, (individually an “Obligor” and
collectively “Obligors”) and each of them jointly and severally (a) waive
presentment, demand, protest, notice of demand, notice of intent to accelerate,
notice of acceleration of maturity, notice of protest, notice of nonpayment,
notice of dishonor, and any other notice required to be given 


2






under the law
to any Obligor in connection with the delivery, acceptance, performance,
default or enforcement of this Note, any indorsement or guaranty of this Note,
or any other documents executed in connection with this Note or any other note
or other loan documents now or hereafter executed in connection with any
obligation of Borrower to Lender (the “Loan Documents”); (b) consent to all
delays, extensions, renewals or other modifications of this Note or the Loan
Documents, or waivers of any term hereof or of the Loan Documents, or release
or discharge by Lender of any of Obligors, or release, substitution or exchange
of any security for the payment hereof, or the failure to act on the part of
Lender, or any indulgence shown by Lender (without notice to or further assent
from any of Obligors), and agree that no such action, failure to act or failure
to exercise any right or remedy by Lender shall in any way affect or impair the
obligations of any Obligors or be construed as a waiver by Lender of, or otherwise
affect, any of Lender’s rights under this Note, under any indorsement or
guaranty of this Note or under any of the Loan Documents; and (c) agree to pay,
on demand, all costs and expenses of collection or defense of this Note or of
any indorsement or guaranty hereof and/or the enforcement or defense of
Lender’s rights with respect to, or the administration, supervision,
preservation, or protection of, or realization upon, any property securing
payment hereof, including, without limitation, reasonable attorney’s and
paralegal’s fees, including fees related to any suit, mediation or arbitration
proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or other proceeding, in such amount as may be determined reasonable
by any arbitrator or court, whichever is applicable. 


10. Indemnification.
Obligors agree to promptly pay, indemnify and hold Lender harmless from all
State and Federal taxes of any kind and other liabilities with respect to or
resulting from the execution and/or delivery of this Note or any advances made
pursuant to this Note. If this Note has a revolving feature and is secured by a
mortgage, Obligors expressly consent to the deduction of any applicable taxes
from each taxable advance extended by Lender.


11. Prepayments.
Prepayments may be made without penalty at any time on any loan or advance
outstanding under this Note for which the interest rate is based on the Prime
Rate or any other fluctuating interest rate which may change daily. Amounts
bearing interest at a rate which does not change daily are referred to as a
“fixed rate amount.” No prepayment of a fixed rate amount shall be permitted
without the prior written consent of Lender. If Lender does permit a prepayment
of a fixed rate amount, or a prepayment of a fixed rate amount occurs by reason
of acceleration or otherwise, Borrower shall pay Lender a prepayment fee within
15 days of demand by Lender. The prepayment fee shall be equal to the amount of
any loss or expense, including any loss of anticipated profits, which Lender
may incur or sustain as a result of such prepayment. For the purposes of
calculating the amounts owed only, it shall be assumed that Lender actually
funded or committed to fund the loan or advance through the purchase of an
underlying deposit in an amount and for a term comparable to the loan or
advance. Any such determination by Lender shall be conclusive, absent a
manifest error in computation. All prepayments of principal shall be applied in
the inverse order of maturity, or in such other order as Lender shall determine
in its sole discretion. 


12. Delinquency Charge.
To the extent permitted by law, a delinquency charge may be imposed in an
amount not to exceed five percent (5%) of any payment that is more than ten
days late. 


13. Events of Default.
The following are events of default hereunder: (a) the failure to pay or
perform any obligation, liability or indebtedness of any Obligor to Lender, or
to any affiliate or subsidiary of Lender, whether under this Note or any Loan
Documents, as and when due (whether at maturity or by acceleration); including,
without limitation, the failure of the Lender to timely receive all payments
required under this Note; (b) the failure to pay or perform (following any
grace period) any other obligation, liability or indebtedness of any Obligor to
any other party where the matter at issue is at least $250,000 in the aggregate
for any such Obligor; (c) the death of any Obligor (if an individual); (d) the
commencement of a proceeding against Borrower for dissolution or liquidation,
the voluntary or involuntary termination or dissolution of Borrower or the
merger or consolidation of Borrower with or into another entity without
obtaining the Lender’s prior written consent, which consent shall be in the
Lender’s sole discretion, acting reasonably, utilizing the Lender’s then
current underwriting criteria; (e) the insolvency of, the business failure of,
the appointment of a custodian, trustee, liquidator or receiver for or for any
of the property of, the assignment for the benefit of creditors by, or the
filing of a petition under bankruptcy, insolvency or debtor’s relief law or the
filing of a petition for any adjustment of indebtedness, composition or
extension by or against any Obligor; (f) the determination by Lender that any
representation or warranty made to Lender by any Obligor in any Loan Documents
or otherwise is or was, when it was made, untrue or materially misleading; (g)
the failure of Borrower to timely deliver such financial statements, including
tax returns, other statements of condition or other information, as Lender
shall reasonably request from time to time; (h) the entry of a judgment against
any Obligor in excess of $100,000 in the aggregate which is not paid or bonded
within ten (10) days following entry; (i) the seizure or forfeiture of, or the
issuance of any writ of possession, garnishment or attachment, or any turnover
order for any property of any Obligor; (j) the good faith determination by
Lender, acting reasonably, that it is insecure for any reason; (k) the
determination by Lender that a material adverse change has occurred in the
financial condition 


3






of any
Obligor; or (l) the failure of Borrower’s business to comply with any law or
regulation controlling its operation, which failure could reasonably be
expected to have a material adverse affect on the Borrower, its reputation or
its financial prospects. 


14. Remedies upon Default.
Whenever there is a default under this Note (a) the entire balance outstanding
hereunder and all other obligations of any Obligor to Lender (however acquired
or evidenced) shall, at the option of Lender, become immediately due and
payable and any obligation of Lender to permit further borrowing under this
Note shall immediately cease and terminate, and/or (b) to the extent permitted
by law, the Rate of interest on the unpaid principal shall be increased at
Lender’s discretion up to the maximum rate allowed by law, or if none, 25% per
annum (the “Default Rate”). The provisions herein for a Default Rate shall not
be deemed to extend the time for any payment hereunder or to constitute a
“grace period” giving Obligors a right to cure any default. At Lender’s option,
any accrued and unpaid interest, fees or charges may, for purposes of computing
and accruing interest on a daily basis after the due date of the Note or any
installment thereof, be deemed to be a part of the principal balance, and
interest shall accrue on a daily compounded basis after such date at the
Default Rate provided in this Note until the entire outstanding balance of
principal and interest is paid in full. Upon a default under this Note, Lender
is, in addition to the right to draw upon any and/or all of the “Collateral”
(as defined in the Loan Agreement between Borrower and Lender dated even date herewith
(the “Loan Agreement”) and the right to proceed against the Obligors hereby
authorized at any time, at its option and without notice or demand, to set off
and charge against the Reserve Account and any accounts of any Obligor (as well
as any money, instruments, securities, documents, chattel paper, credits,
claims, demands, income and any other property, rights and interests of any
Obligor), which at any time shall come into the possession or custody or under
the control of Lender or any of its agents, affiliates or correspondents, any
and all obligations due hereunder. Additionally, Lender shall have all rights
and remedies available under each of the Loan Documents, as well as all rights
and remedies available at law or in equity. Any judgment rendered on this Note
shall bear interest at the highest rate of interest permitted pursuant to
Chapter 687, Florida Statutes. 


15. Non-waiver. The
failure at any time of Lender to exercise any of its options or any other
rights hereunder shall not constitute a waiver thereof, nor shall it be a bar
to the exercise of any of its options or rights at a later date. All rights and
remedies of Lender shall be cumulative and may be pursued singly, successively
or together, at the option of Lender. The acceptance by Lender of any partial
payment shall not constitute a waiver of any default or of any of Lender’s
rights under this Note. No waiver of any of its rights hereunder, and no
modification or amendment of this Note, shall be deemed to be made by Lender
unless the same shall be in writing, duly signed on behalf of Lender; each such
waiver shall apply only with respect to the specific instance involved, and
shall in no way impair the rights of Lender or the obligations of Obligors to
Lender in any other respect at any other time. 


16. Applicable Law, Venue and Jurisdiction.
This Note and the rights and obligations of Borrower and Lender shall be
governed by and interpreted in accordance with the law of the State of Florida.
In any litigation in connection with or to enforce this Note or any indorsement
or guaranty of this Note or any Loan Documents, Obligors, and each of them,
irrevocably consent to and confer personal jurisdiction on the courts of the
State of Florida or the United States located within the State of Florida and
expressly waive any objections as to venue in any such courts. Nothing
contained herein shall, however, prevent Lender from bringing any action or
exercising any rights within any other state or jurisdiction or from obtaining
personal jurisdiction by any other means available under applicable law. The
interest rate charged on this Note is authorized by Chapter 655, Florida
Statutes and Section 687.12, Florida Statutes. 


17. Partial Invalidity.
The unenforceability or invalidity of any provision of this Note shall not
affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of this Note or of the Loan
Documents to any person or circumstance shall not affect the enforceability or
validity of such provision as it may apply to other persons or circumstances. 


18. Binding Effect.
This Note shall be binding upon and inure to the benefit of Borrower, Obligors
and Lender and their respective successors, assigns, heirs and personal
representatives, provided, however, that no obligations of Borrower or Obligors
hereunder can be assigned without prior written consent of Lender. 


19. Controlling Document.
To the extent that this Note conflicts with or is in any way incompatible with
any other document related specifically to the loan evidenced by this Note,
this Note shall control over any other such document, and if this Note does not
address an issue, then each other such document shall control to the extent
that it deals most specifically with an issue. 


4






20. Address for Notices.
Any notice required to be given under this Note shall be given in writing, and
shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), one (1) business day after
being deposited with a nationally recognized overnight courier, or, if mailed,
three (3) days after being deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed if to Borrower at the
address shown near the beginning of this Note and if to Lender at the address
set forth below. Any party may change its address for notices under this Note
by giving formal written notice to the other parties, specifying that the
purpose of the notice is to change the party’s address. For notice purposes,
Borrower agrees to keep Lender informed at all times of Borrower’s current
address. Unless otherwise provided or required by law, if there is more than
one Borrower, any notice given by Lender to any Borrower is deemed to be notice
given to all Borrowers. Notwithstanding anything to the contrary herein, all
notices and communications to the Lender shall be directed to the following
address: 


	
  

 	
  

 
	
  

 	
 Seaside
 National Bank & Trust

 
	
  

 	
 201 South
 Orange Avenue

 
	
  

 	
 Suite 1350

 
	
  

 	
 Orlando,
 Florida 32801

 
	
  

 	
  

 
	
  

 	
 with copy
 to:

 
	
  

 	
  

 
	
  

 	
 Ruden
 McClosky P.A.

 
	
  

 	
 4855 N.
 Technology Way

 
	
  

 	
 Suite 630

 
	
  

 	
 Boca Raton,
 Florida 33431

 
	
  

 	
 Attention:
 Peter Blacklock, Esq.

 



21. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. 


22. Assignment.
Lender may sell or offer to sell this Note, together with any and all documents
guaranteeing, securing or executed in connection with this Note, to one or more
assignees without notice to or consent of Borrower. Lender is hereby authorized
to share any information it has pertaining to the loan evidenced by this Note,
including without limitation credit information on the undersigned, any of its
principals, or any guarantors of this Note, to any such assignee or prospective
assignee. 


23. DISPUTE RESOLUTION PROVISION. THIS
PARAGRAPH, INCLUDING THE SUBPARAGRAPHS BELOW, IS REFERRED TO AS THE “DISPUTE
RESOLUTION PROVISION.” THIS DISPUTE RESOLUTION PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. 


          (a)
THIS DISPUTE RESOLUTION PROVISION CONCERNS THE RESOLUTION OF ANY CONTROVERSIES
OR CLAIMS BETWEEN THE PARTIES, WHETHER ARISING IN CONTRACT, TORT OR BY STATUTE,
INCLUDING BUT NOT LIMITED TO CONTROVERSIES OR CLAIMS THAT ARISE OUT OF OR
RELATE TO: (I) THIS AGREEMENT (INCLUDING ANY RENEWALS, EXTENSIONS OR
MODIFICATIONS); OR (II) ANY DOCUMENT RELATED TO THIS AGREEMENT (COLLECTIVELY A “CLAIM”).
FOR THE PURPOSES OF THIS DISPUTE RESOLUTION PROVISION ONLY, THE TERM “PARTIES”
SHALL INCLUDE ANY PARENT CORPORATION, SUBSIDIARY OR AFFILIATE OF THE LENDER
INVOLVED IN THE SERVICING, MANAGEMENT OR ADMINISTRATION OF ANY OBLIGATION
DESCRIBED OR EVIDENCED BY THIS AGREEMENT. 


          (b)
AT THE REQUEST OF ANY PARTY TO THIS AGREEMENT, ANY CLAIM SHALL BE RESOLVED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (TITLE 9,
U.S. CODE) (THE “ACT”). THE ACT WILL APPLY EVEN THOUGH THIS AGREEMENT PROVIDES
THAT IT IS GOVERNED BY THE LAW OF A SPECIFIED STATE. 


          (c)
ARBITRATION PROCEEDINGS WILL BE DETERMINED IN ACCORDANCE WITH THE ACT, THE
THEN-CURRENT RULES AND PROCEDURES FOR THE ARBITRATION OF FINANCIAL SERVICES
DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THEREOF
(“AAA”), AND THE TERMS OF THIS DISPUTE RESOLUTION PROVISION. IN THE EVENT OF
ANY INCONSISTENCY, THE TERMS OF THIS DISPUTE 


5






RESOLUTION PROVISION SHALL CONTROL. IF AAA IS
UNWILLING OR UNABLE TO (I) SERVE AS THE PROVIDER OF ARBITRATION OR (II) ENFORCE
ANY PROVISION OF THIS ARBITRATION CLAUSE, THE LENDER MAY DESIGNATE ANOTHER
ARBITRATION ORGANIZATION WITH SIMILAR PROCEDURES TO SERVE AS THE PROVIDER OF
ARBITRATION. 


          (d)
THE ARBITRATION SHALL BE ADMINISTERED BY AAA AND CONDUCTED, UNLESS OTHERWISE
REQUIRED BY LAW, IN ANY U.S. STATE WHERE REAL OR TANGIBLE PERSONAL PROPERTY
COLLATERAL FOR THIS CREDIT IS LOCATED OR IF THERE IS NO SUCH COLLATERAL, IN THE
STATE SPECIFIED IN THE GOVERNING LAW SECTION OF THIS AGREEMENT. ALL CLAIMS
SHALL BE DETERMINED BY ONE ARBITRATOR; HOWEVER, IF CLAIMS EXCEED FIVE MILLION
DOLLARS ($5,000,000), UPON THE REQUEST OF ANY PARTY, THE CLAIMS SHALL BE
DECIDED BY THREE ARBITRATORS. ALL ARBITRATION HEARINGS SHALL COMMENCE WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION AND CLOSE WITHIN NINETY (90) DAYS OF
COMMENCEMENT AND THE AWARD OF THE ARBITRATOR(S) SHALL BE ISSUED WITHIN THIRTY
(30) DAYS OF THE CLOSE OF THE HEARING. HOWEVER, THE ARBITRATOR(S), UPON A
SHOWING OF GOOD CAUSE, MAY EXTEND THE COMMENCEMENT OF THE HEARING FOR UP TO AN
ADDITIONAL SIXTY (60) DAYS. THE ARBITRATOR(S) SHALL PROVIDE A CONCISE WRITTEN
STATEMENT OF REASONS FOR THE AWARD. THE ARBITRATION AWARD MAY BE SUBMITTED TO
ANY COURT HAVING JURISDICTION TO BE CONFIRMED AND HAVE JUDGMENT ENTERED AND
ENFORCED. 


          (e)
THE ARBITRATOR(S) WILL GIVE EFFECT TO STATUTES OF LIMITATION IN DETERMINING ANY
CLAIM AND MAY DISMISS THE ARBITRATION ON THE BASIS THAT THE CLAIM IS BARRED.
FOR PURPOSES OF THE APPLICATION OF ANY STATUTES OF LIMITATION, THE SERVICE ON
AAA UNDER APPLICABLE AAA RULES OF A NOTICE OF CLAIM IS THE EQUIVALENT OF THE
FILING OF A LAWSUIT. ANY DISPUTE CONCERNING THIS ARBITRATION PROVISION OR
WHETHER A CLAIM IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR(S), EXCEPT
AS SET FORTH AT SUBPARAGRAPH (H) OF THIS DISPUTE RESOLUTION PROVISION. THE
ARBITRATOR(S) SHALL HAVE THE POWER TO AWARD LEGAL FEES PURSUANT TO THE TERMS OF
THIS AGREEMENT. 


          (f)
THIS PARAGRAPH DOES NOT LIMIT THE RIGHT OF ANY PARTY TO: (I) EXERCISE SELF-HELP
REMEDIES, SUCH AS BUT NOT LIMITED TO, SETOFF (SUBJECT TO THE LIMITATIONS SET
FORTH IN SECTION 14 OF THIS NOTE); (II) INITIATE JUDICIAL OR NON-JUDICIAL
FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL; (III) EXERCISE
ANY JUDICIAL OR POWER OF SALE RIGHTS, OR (IV) ACT IN A COURT OF LAW TO OBTAIN
AN INTERIM REMEDY, SUCH AS BUT NOT LIMITED TO, INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR APPOINTMENT OF A RECEIVER, OR ADDITIONAL OR SUPPLEMENTARY
REMEDIES. 


          (g)
THE FILING OF A COURT ACTION IS NOT INTENDED TO CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE SUING PARTY, THEREAFTER TO REQUIRE SUBMITTAL
OF THE CLAIM TO ARBITRATION. 


          (h)
ANY ARBITRATION OR TRIAL BY A JUDGE OF ANY CLAIM WILL TAKE PLACE ON AN
INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS OR REPRESENTATIVE ACTION
(THE “CLASS ACTION WAIVER”). REGARDLESS OF ANYTHING ELSE IN THIS DISPUTE
RESOLUTION PROVISION, THE VALIDITY AND EFFECT OF THE CLASS ACTION WAIVER MAY BE
DETERMINED ONLY BY A COURT AND NOT BY AN ARBITRATOR. THE PARTIES TO THIS
AGREEMENT ACKNOWLEDGE THAT THE CLASS ACTION WAIVER IS MATERIAL AND ESSENTIAL TO
THE ARBITRATION OF ANY DISPUTES BETWEEN THE PARTIES AND IS NONSEVERABLE FROM
THE AGREEMENT TO ARBITRATE CLAIMS. IF THE CLASS ACTION WAIVER IS LIMITED,
VOIDED OR FOUND UNENFORCEABLE, THEN THE PARTIES’ AGREEMENT TO ARBITRATE SHALL
BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING, SUBJECT TO THE RIGHT TO
APPEAL THE LIMITATION OR INVALIDATION OF THE CLASS ACTION WAIVER. THE
PARTIES ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION
BE ARBITRATED. 


          (i)
BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND VOLUNTARILY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM.
FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE,
TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH
CLAIM. THIS WAIVER OF JURY TRIAL SHALL REMAIN IN EFFECT EVEN IF THE 


6






CLASS ACTION WAIVER IS LIMITED, VOIDED OR
FOUND UNENFORCEABLE. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL
BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT
IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED
BY LAW. 


Borrower represents to Lender that the
proceeds of this loan are to be used primarily for business, commercial or
agricultural purposes. Borrower acknowledges having read and understood, and
agrees to be bound by, all terms and conditions of this Note and hereby
executes this Note under seal as of the date here above written. 


NOTICE OF FINAL AGREEMENT. THIS WRITTEN
PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. 


EXECUTION DATE:
October 25, 2010 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Borrower:

 
	
  

 	
  

 	
  

 
	
  

 	
 BIOHEART, INC., a Florida corporation

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/Mike
 Tomas

 	
 (SEAL)

 
	
  

 	
  

 	 

 	 

 
	
  

 	
  

 	
  

 
	
  

 	
 Print Name:  

 	
 Mike Tomas

 
	
  

 	
  

 	 

 	 

 
	
  

 	
  

 	
  

 
	
  

 	
 Title:

 	
 President
 & Chief Executive Officer

 
	
  

 	
  

 	 

 	 

 


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