Loan Agreement No:
Guarantee Amount: $2,200,000.00
This Agreement (the Agreement
) is made as of October 10, 2007 (the Effective
), by and between BIOHEART, INC., a Florida
corporation (the Company
Howard and Brenda Leonhardt
WHEREAS, on June 1, 2007, the Company obtained a term loan (the Loan), in the
principal amount of $5,000,000, from Bank of America, N.A. (the Bank) pursuant to a
certain loan agreement between the Company and the Bank (the Loan Agreement) and related
promissory note (the Note);
WHEREAS, as security for the Companys obligations relating to the Loan, the Guarantor (i)
will pledge and assign to the Bank (the Pledge) and grant to the Bank a first-priority
security interest in, a investment management account with the Bank having assets of at least
$2,200,000 in value deposited in such account (the Collateral Account) and/or (ii)
execute and deliver a guaranty agreement (the Personal Guaranty) in favor of the Bank
with a maximum liability to the bank of $2,200,000;
WHEREAS, the Pledge and Personal Guaranty are in addition to, and not in replacement of, the
pledge and personal guaranty in the amount of $1,100,000 previously made by the Guarantor to secure
the Loan on June 1, 2007;
WHEREAS, the Pledge and/or the Personal Guaranty is being provided as replacement of $2.2
million of collateral pledged by Magellan Group Investments, LLC to secure the Loan;
WHEREAS, in accordance with the terms of this Agreement, the Guarantor has agreed to make
payments to the Company equal to 40% (the Guaranteed Percentage) of the interest and
principal payable by the Company to the Bank in connection with the Loan, which amounts shall be
used by the Company solely to pay interest and principal on the Loan;
WHEREAS, as consideration for the Guarantors agreement to make the payments described above
and to grant, in favor of the Bank, the Pledge and/or the Personal Guaranty, the Company has
agreed, upon the terms and conditions set forth herein, to (i) issue the Guarantor a warrant or
warrants to purchase shares of the Companys common stock, par value $.001 per share (the
Common Stock), and (ii) pay certain fees to the Guarantor;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto,
the Company and the Guarantor agree as follows:
1.1 GUARANTEE DOCUMENTS AND PAYMENTS FOR THE BENEFIT OF THE
In consideration of the Companys issuance of the Warrant (as defined in Section 1.2 below)
and payment of the Guarantee Fee (as defined in Section 1.2 below), the Guarantor hereby agrees
that it shall:
(a) At Closing (as defined in Section 2.1 below), execute and deliver, in favor of the Bank,
whatever documentation (such documentation, the Guarantee Documents) the Bank reasonably
requires in connection with the Personal Guaranty and/or the Pledge.
(b) During the period commencing on the Effective Date and terminating on the date that the
Companys payment obligations under the Loan are satisfied and/or discharged in full, at least ten
(10) business days prior to the due date for any payment of interest (Interest Payment)
or payment of principal (Principal Payment) or other payment required to be made by the
Company to the Bank under the Loan, pay the Company or the Bank an amount equal to the product
obtained by multiplying (x) the total amount of the payment then due and (y) the Guaranteed
Percentage (each such payment, a Guarantor Payment) provided, that the aggregate
amount of Guarantor Payments shall not exceed $2,200,000. The Guarantor may, at its option, elect
to make Guarantor Payments by drawing, or authorizing the Bank to draw, on the Collateral Account,
if approved by the Bank. The Company shall apply the Guarantor Payment towards an Interest
Payment, Principal Payment or other payment due in connection with the Loan, and shall either
notify the Guarantor in writing of the due date for any such payment, or shall promptly forward to
the Guarantor any correspondence received by the Company from the Bank regarding the amount and due
date of such Interest Payment, Principal Payment or other payment (as applicable). All payments
hereunder shall be made to a specified account of the Company maintained at the Bank.
(c) The Guarantor hereby authorizes the Company to notify the Bank in the event that the
Guarantor fails to make a Guarantor Payment when due.
1.2 ISSUANCE OF WARRANTS AND PAYMENT OF MONTHLY FEES
In consideration of the Guarantors issuing the Personal Guaranty and/or the Pledge in favor
of the Bank the Company hereby agrees that it shall:
(a) At Closing (as defined in Section 2.1 below), issue to the Guarantor a warrant to purchase
an aggregate of 81,547 shares (the Subject Shares) of the Common Stock, with an exercise price of
$7.69 per share, in the form attached hereto as Exhibit A (the Warrant). The
Warrant will provide that the number of Subject Shares will increase to 101,934, 135,912 and
203,868, respectively, in the event the Company has not satisfied and/or discharged all of its
payment obligations under this Agreement and the Loan by the June 1, 2008, 2009 and 2010,
(b) Pay the Guarantor a cash fee (the Guarantee Fee) in the amount determined by
multiplying $2,200,000 by 5.0% and multiplying the resulting amount by a fraction, the numerator of
which is the number of days elapsed between the date hereof and the earlier of (i) the date the
Company has satisfied and/or discharged all of its payment obligations under the Loan (a Loan
Satisfaction) and (ii) February 1, 2008 (or such later date to which the maturity date of the
Note may be extended), and the denominator of which is 365 in accordance with the terms of this
Section 1.2(b). The Company shall pay the Guarantee Fee within five (5) business days of the
Trigger Date (as defined below). For purposes of this Agreement, the Trigger Date shall
mean the earliest to occur of: (i) the closing date of an initial public offering of the Companys
Common Stock generating at least $30 million of net proceeds to the Company occurring on or before
January 31, 2008 (a Qualified Offering), and (ii) the date the Company satisfies and/or
discharges all of its payment obligations (a BlueCrest Loan Satisfaction)
under that certain Loan and Security Agreement, dated as of May 31, 2007 by and between the Company
and BlueCrest Capital Finance, L.P. (the BlueCrest Loan).
(c) If on or before the first business day of the 36th full calendar month after
the date of the BlueCrest Loan (the Outside Payment Date), the Company has not
effectuated a BlueCrest Loan Satisfaction or a Qualified Offering:
(A) the Company shall use its best efforts to effectuate a BlueCrest Loan Satisfaction as soon
as possible following the Outside Payment Date; and
(B) the Company shall pay the Guarantee Fee no later than five (5) business days following a
BlueCrest Loan Satisfaction.
2. THE CLOSING.
2.1. CLOSING DATE. The parties agree to effect the transactions contemplated hereby (the
Closing) contemporaneously with the execution of this Agreement.
2.2 CLOSING DELIVERABLES.
(a) At the Closing, the Company shall deliver or cause to be delivered to the Guarantor:
(i) an executed copy of this Agreement; and
(ii) an executed copy of the Warrant.
(b) At the Closing, the Guarantor shall deliver or cause to be delivered to the Company an
executed copy of this Agreement.
(c) At the Closing, the Guarantor shall deliver to the Bank duly executed copies of the
3. RESTRICTIONS ON TRANSFER OF THE WARRANT
No transfer of all or any portion of the Warrant shall be made except in accordance with the
applicable provisions of this Agreement and/or the Warrant.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Guarantor and agrees as set forth
below; provided, however, that the Guarantor shall not be able to rely on any representation and/or
warranty made by the Company if Mr. Leonhardt, who is the Executive Chairman and Chief Technology
Officer of the Company, has actual knowledge as of the Effective Date that such representation is
4.1. CORPORATE POWER.
The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Florida
and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on the Companys business, properties, or financial condition
(a Material Adverse Effect
). The Company has all requisite corporate power and authority
to execute and
deliver this Agreement, the Warrant and the agreements related to the Loan and to carry out and
perform its obligations hereunder and thereunder. The Company has all requisite corporate power
and authority to issue and deliver the shares of Common Stock issuable upon valid exercise of the
4.2 AUTHORIZATION. This Agreement has been duly authorized, executed and delivered by the
Company. All corporate action on the part of the Company and its shareholders, directors and
officers necessary for the authorization, execution and delivery of this Agreement, the execution
of the agreements related to the Loan, the issuance of the Warrant and the shares of Common Stock
issuable upon conversion of the Warrant, the consummation of the other transactions contemplated
hereby and the performance of all the Companys obligations hereunder has been taken. This
Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies, and (iii) the limitations imposed by applicable
federal or state securities laws on the indemnification provisions contained in this Agreement. The
shares of Common Stock issuable upon exercise of the Warrant have been duly authorized (the
Warrant Shares). When the Warrant Shares have been delivered against payment in
accordance with the terms of the Warrant, such Conversion Shares will have been, validly issued,
fully paid and nonassessable.
4.3. GOVERNMENTAL CONSENTS. All consents, approvals, orders, or authorizations of, or
registrations, qualifications, designations, declarations, or filings with, any governmental
authority, required on the part of the Company in connection with the valid execution and delivery
of this Agreement, the offer, sale and issuance of the Warrant have been obtained and will be
effective at the Closing, except for notices required or permitted to be filed thereafter with
certain state and federal securities commissions, which notices shall be filed on a timely basis.
4.4. OFFERING. Assuming the accuracy of the representations and warranties of the Guarantor
contained in Section 5 below, the offer, sale and issuance of the Warrant is exempt from the
registration and prospectus delivery requirements of the Securities Act and has been registered or
qualified (or is exempt from registration and qualification) under the registration, permit, or
qualification requirements of all applicable state securities laws.
4.5. CAPITALIZATION. The authorized capital of the Company consists of 50,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. As of June 30, 2007, 13,332,295 shares of
Common Stock and no shares of Preferred Stock were issued and outstanding.
4.5 USE OF PROCEEDS FROM GUARANTOR CASH PAYMENTS. The Company shall use the proceeds of any
Guarantor Payment solely to pay amounts due or payable under the Loan.
4.6 LITIGATION. Except as referenced on Exhibit 3(d) to the Loan Agreement, there is no
proceeding involving the Company pending or, to the knowledge of the Company, threatened before
any court or governmental authority, agency or arbitration authority.
4.7 NO CONFLICTING AGREEMENTS. There is no charter, bylaw, stock provision, partnership
agreement or other document pertaining to the organization, power or authority of the Company and
no provision of any existing agreement (including, without limitation, the Loan Agreement with
Bank of America (the Loan Agreement) or the Senior Loan Agreement [as defined in the
Loan Agreement]), mortgage, indenture or contract binding on the Company or affecting its
property, which would conflict with or in any way prevent the execution, delivery or carrying out
of the terms of this Agreement.
4.8 OWNERSHIP OF ASSETS. The Company has good title to its assets, and its assets are free
and clear of liens, except for the security interest of BlueCrest (as defined in the Loan
Agreement). For purposes of this Section 4.8, a sublicense of any of the Companys intellectual
property is not deemed to be a lien.
4.9 TAXES. All taxes and assessments due and payable by the Company have been paid or are
being contested in good faith by appropriate proceedings and the Company has filed all tax returns
which it is required to file.
4.10 FINANCIAL STATEMENTS. The financial statements of Company heretofore delivered to the
Guarantor have been prepared in accordance with GAAP applied on a consistent basis throughout the
period involved and fairly present the Companys financial condition as of the date or dates
thereof, and there has been no material adverse change in Companys financial condition or
operations since the date of the financial statements. All factual information furnished by the
Company to the Guarantor in connection with this Agreement is and will be accurate on the date as
of which such information is delivered to the Guarantor.
4.11 ENVIRONMENTAL. The conduct of the Companys business operations and the condition of the
Companys property does not and will not violate any federal laws, rules or ordinances for
environmental protection, regulations of the Environmental Protection Agency, any applicable local
or state law, rule, regulation or rule of common law or any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials (as defined in the Loan Agreement).
4.12 AFFIRMATIVE COVENANTS. Until full payment and performance of all obligations of the
Company to the Guarantor hereunder, the Company will, unless Guarantor consents otherwise in
(a) Existence and Compliance. Maintain its existence, good standing and qualification to do
business, where required, and comply with all laws, regulations and governmental requirements
including, without limitation, environmental laws applicable to it or to any of its property,
business operations and transactions.
(b) Adverse Conditions or Events. Promptly advise the Guarantor orally or in writing of (i)
any condition, event or act which comes to its attention that would or might materially adversely
affect the Guarantors rights under this Agreement or the Warrant, and (ii) any litigation in
excess of $500,000 is filed by or against Company, or (iii) any event that has occurred that would
constitute an event of default under the Loan Agreement.
(c) Taxes and Other Obligations. Pay all of its taxes, assessments and other obligations,
including, but not limited to, taxes, costs or other expenses arising out of this transaction, as
the same become due and payable, except to the extent the same are being contested in good faith by
appropriate proceedings in a diligent manner.
4.13 NEGATIVE COVENANTS. Until full payment and performance of all obligations of the Company
to the Guarantor hereunder, the Company will not, unless the Guarantor consents otherwise in
(a) Character of Business. Change the general character of business as conducted at the date
hereof, or engage in any type of business not reasonably related to its business as presently
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GUARANTOR.
The Guarantor hereby represents and warrants to the Company and agrees as follows:
5.1 RELIANCE. The Guarantor understands that the Company has relied on the information and
representations with respect to the Guarantor set forth in this Section 5 in determining, among
other things, whether an investment in the Warrant is suitable for the Guarantor, and the Guarantor
represents and warrants that all such information is true and correct as of the date hereof.
5.2 POWER AND AUTHORITY. The Guarantor has all requisite power and authority to execute and
deliver this Agreement and the Guarantee Documents and to carry out and perform its obligations
hereunder and thereunder.
5.3 EXPERIENCE. The Guarantor is an accredited investor within the meaning of Regulation D
under the Securities Act and such Guarantor has no ability to acquire the Warrant Shares until at
least one year after the date the Warrants are issued.
5.4. INFORMATION AND SOPHISTICATION. The Guarantor has received all the information it has
requested from the Company that it considers necessary or appropriate for deciding whether to
acquire the Warrant. The Guarantor has had an opportunity to ask questions and receive answers from
the Company regarding the terms and conditions of the Warrant and to obtain any additional
information necessary to verify the accuracy of the information given to the Guarantor. The
Guarantor further represents that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risk of the investment in the Warrant and
the Warrant Shares (collectively, the Securities).
5.5 DUE DILIGENCE. The Guarantor has consulted with its own legal, regulatory, tax, business,
investment, financial and accounting advisers in connection with its determination to enter into
this Agreement. The Guarantor has made its own decisions based upon its own judgment, due
diligence and advice from such advisers as it has deemed necessary and, except for the
representations and warranties expressly set forth herein, is not relying upon any information,
representation or warranty by the Company or any agent of the Company in determining to enter into
5.6. ABILITY TO BEAR ECONOMIC RISK. The Guarantor acknowledges that investment in the
Securities involves a high degree of risk. The Guarantor is able, without materially impairing its
financial condition, to hold the Securities for an indefinite period of time and to suffer a
complete loss of its investment. Neither the Securities and Exchange Commission nor any state
securities commission has approved any of the Securities or passed upon or endorsed the merits of
the offering of the Securities by the Company.
5.7 LOCK-UP AGREEMENT. The Guarantor hereby agrees that, during the period of duration (not
to exceed one hundred eighty (180) days) specified by the Company and an underwriter of Common
Stock or other securities of the Company in an agreement in connection with any initial public
offering of the Companys securities, following the effective date of the registration statement
for a public offering of the Companys securities filed under the Securities Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to be similarly bound)
any securities of the Company held by it at any time during such period, except Common Stock, if
any, included in such registration.
5.8 The Guarantor hereby acknowledges that:
IN THE EVENT THAT SALES OF THE SECURITIES OFFERED HEREBY ARE MADE TO FIVE (5) OR
MORE PERSONS IN FLORIDA, ALL PURCHASERS IN FLORIDA HAVE THE RIGHT TO VOID THE SALE
OF THE SECURITIES OFFERED HEREBY WITHIN THREE (3) DAYS AFTER THE PAYMENT OF THE
PURCHASE PRICE IS MADE TO THE COMPANY, AN AGENT OF THE COMPANY, OR AN ESCROW
AGENT, OR WITHIN THREE (3) DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS
COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER. PAYMENTS FOR TERMINATED
SUBSCRIPTIONS VOIDED BY PURCHASERS AS PROVIDED FOR IN THIS PARAGRAPH WILL BE
PROMPTLY REFUNDED WITHOUT INTEREST.
5.9 The Guarantor shall, at all times from the date hereof until the date the Company
effectuates a Loan Satisfaction, maintain, as security for the Loan, Eligible Collateral (as
defined in that certain Pledge Agreement dated of even date herewith between the Guarantor and the
Bank (the Pledge Agreement)) with an Adjusted Collateral Value (as defined in the Pledge
Agreement) in excess of the Guaranty Minimum (as defined in the Pledge Agreement).
6. REIMBURSEMENT OF PAYMENTS IN CONNECTION WITH GUARANTEE DOCUMENTS.
(a) The Company hereby agrees to pay to the Guarantor (i) all reasonable and documented costs
and expenses (including court costs and reasonable legal expenses) incurred or expended by the
Guarantor in connection with (x) the Guarantors negotiation, drafting and execution of this
Agreement, the Guarantee Documents and any agreements with Magellan Group Investments, LLC, the
Guarantors review of all documents in connection with the Loan and the Guarantors establishment
of the Collateral Account (the Initial Expenses) and (y) the Banks taking any action
against the Guarantor to enforce the Banks rights under the Guarantee Documents (together with the
Initial Expenses, the Expenses) and (ii) to repay to Guarantor the Guarantor Payments.
Notwithstanding the foregoing or anything else to the contrary in this Agreement, the Company shall
not be required to reimburse the Guarantor for Expenses that the Guarantor would not have incurred
but for the Guarantors failure to satisfy the terms and conditions of this Agreement or the
(b) Each payment to be made by the Company hereunder shall be due within thirty (30) days of
the receipt by the Company of a request for reimbursement from Guarantor; provided,
however, that if the date of any reimbursement request occurs prior to the Trigger Date, such
payment shall be made within thirty (30) days after the Trigger Date or on the same date the
Company is required to pay the Guarantee Fee in accordance with Section 1.2(c) hereof, whichever
occurs first. Notwithstanding the foregoing, the Company shall reimburse the Guarantor for the
Initial Expenses within ten (10) business days of the Closing.
(c) All payments payable by the Company hereunder shall be made in immediately available funds
to an account that the Guarantor shall designate from time to time in writing to the Company.
Except for any Collection Expenses (which shall not bear any interest), payments due shall be made
with interest thereon from the due date (or, in the case of the Guarantor Payments, from the date
that the Guarantor made such payment) until payment thereof by the Company, at the Prime Rate
offered by the Bank, plus 5%, and in effect as such due date. For the avoidance of doubt, the due
date for any reimbursement request shall be thirty (30) days after the date of a written
reimbursement request made by the Guarantor.
Company shall make the payments specified above even if there is a dispute about whether the Bank is or was entitled to take any action to enforce its rights under the
Guarantee Documents. In no event shall the Company be liable to Guarantor for any special,
indirect or consequential damages incurred by Guarantor.
7. DEFAULT; REMEDIES UPON DEFAULT.
7.1 GUARANTOR DEFAULT.
(a) The failure by the Guarantor to: (x) pay any Guarantor Payment (whether in cash or by the
Bank drawing on, taking control of or foreclosing the assets deposited into the Collateral Account)
which failure is not cured within two (2) business days of the Guarantors receipt of written
notice from the Company of such failure or (y) comply with the covenant set forth in Section 5.9
hereto shall constitute a Key Default hereunder.
(b) Upon any Key Default by the Guarantor, the following shall occur immediately and
automatically, provided that the Company shall provide Guarantor with written notice promptly upon
learning of any such default: (a) the Warrant shall be cancelled; (b) the Companys obligations to
make payments to the Guarantor under Section 1.2(b) of this Agreement shall be terminated; and (c)
the Companys obligations under Section 6 to reimburse the Guarantor for Expenses shall be
(c) Notwithstanding anything to the contrary in this Agreement, the Guarantor shall indemnify,
defend and hold the Company harmless from and against all losses (including, without limitation,
reasonable attorneys fees and court costs) incurred by the Company as a result of the Guarantors
breach of any of its material obligations under this Agreement, including, but not limited to, a
breach that results in a Key Default; provided, however, (z) in no event shall the
Guarantor be liable to the Company for (A) any special, indirect or consequential damages; or (B)
an amount in excess of $2.2 million (the Damages Cap); provided, however, that if the
Bank liquidates all or any portion of the Collateral Account, the amount liquidated by the Bank
shall reduce the Damages Cap on a dollar for dollar basis.
7.2 COMPANY DEFAULT. The failure by the Company to pay or perform any material obligation
hereunder (including, without limitation, a breach of its obligations under Section 8 below) which
failure is not cured within two (2) business days of the Companys receipt of written notice from
the Guarantor of such failure shall constitute a default hereunder. Upon any such default by the
Company, the Guarantors obligations to pay the Guarantor Payments shall be terminated.
Notwithstanding anything to the contrary in this Agreement, the Company shall indemnify, defend and
hold the Guarantor harmless from and against all losses (including, without limitation, reasonable
attorneys fees and court costs) incurred by the Guarantor as a result of the Companys failure to
comply with its obligations hereunder; provided that Companys maximum liability to the Guarantor
under this Agreement shall not exceed $2.2 million.
8.1. BINDING AGREEMENT; NON-ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors. This Agreement is not assignable
without the express written consent of both parties, which consent may be withheld for any reason.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any
rights, remedies, obligations, or liabilities under or by reason of this Agreement except as
expressly otherwise provided in this Agreement. If the Guarantor secures the consent of a third
party to indemnify it for certain costs and expenses it may incur hereunder or in connection with
the Guaranty Documents, the Guarantor agrees that is shall provide the Company notice of such
agreement, including the contact
information of the subject third party.
8.2. GOVERNING LAW
. This Agreement shall be governed by and construed under the laws of the
State of Florida
, irrespective of any contrary result otherwise required under the conflict or
choice of law rules of Florida
8.3. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but both of which together shall constitute one and the same instrument.
8.4. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
Any notice required or permitted under this Agreement must be given in writing
and shall be deemed effectively given upon personal delivery or upon overnight mail, postage
prepaid, if to the Company, addressed to William H. Kline, Chief Financial Officer, Bioheart, Inc.
13794 NW 4th
Street, Suite 212, Sunrise, Florida
33325, with a copy to David E. Wells,
Esq., Hunton & Williams, LLP, 1111 Brickell Avenue, Suite 2500, Miami, Florida
33131, or to the
Guarantor at Mr. Howard J. Leonhardt, [insert address], with a copy to Tobin & Reyes, P. A., Attn:
David S. Tobin, The Plaza, 5355 Town Center Road, Suite 204, Boca Raton, FL 33486 and Mrs. Brenda
Leonhardt, [insert address] with a copy to Sherman Law Offices, Attn: Craig B. Sherman, 1000
Corporate Drive, Suite 310, Fort Lauderdale, Florida
33334 or at such other address as a party may
designate by ten days advance written notice to the other party.
8.6. MODIFICATION; WAIVER. No modification or waiver of any provision of this Agreement or
consent to departure therefrom shall be effective unless in writing and approved by the Company and
8.7. FURTHER ASSURANCES. The parties shall take such further actions, and execute, deliver and
file such documents, as may be necessary or appropriate to effectuate the intent of this Agreement.
8.8. CONSTRUCTION. The language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict construction shall be
applied against any party. Any references to any federal, state, local or foreign statute or law
shall also refer to all rules and regulations promulgated thereunder, unless the context otherwise
requires. Unless the context otherwise requires: (a) a term has the meaning assigned to it by this
Agreement; (b) forms of the word include mean that the inclusion is not limited to the items
listed; (c) or is disjunctive but not exclusive; (d) words in the singular include the plural,
and in the plural include the singular; (e) provisions apply to successive events and transactions;
(f) hereof, hereunder, herein and hereto refer to the entire Agreement and not any section
or subsection; and (g) $ means the currency of the United States.
8.9. ENTIRE AGREEMENT. This Agreement and the Exhibits hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects hereof and no party
will be liable or bound to the other in any manner by any representations, warranties, covenants
and agreements other than those specifically set forth herein.
The parties irrevocably submit to the exclusive jurisdiction of the courts of
State of Florida
located in Broward County and federal courts of the United States for the Southern
District of Florida in respect of the interpretation and of the provisions of this Agreement and in
respect of the transactions contemplated hereby.
8.11 WAIVER OF JURY TRIAL. THE COMPANY AND THE GUARANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF
THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY THE GUARANTOR AND
8.12 SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, it is agreed that
they shall be entitled to an injunction or injunctions to prevent breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof in any court of
competent jurisdiction in the United States or any state thereof, in addition to any other remedy
to which they may be entitled at law or equity.
8.13 ATTORNEYS FEES. In the event of any litigation, including appeals, with regard to this
Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all
reasonable fees, costs, and expenses of counsel (at pre-trial, trial and appellate levels).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written