FOR VALUE RECEIVED, Fibrocell Science, Inc.
(f/k/a Isolagen, Inc.), a Delaware corporation (the “
Maker ”), with its primary offices located at 405
Eagleview Boulevard, Exton, Pennsylvania 19341, promises to pay to
the order of
, or its registered assigns (the “ Payee ”),
upon the terms set forth below, the principal sum of
dollars ($
) plus interest on the unpaid principal sum outstanding at the rate
of 12.5% per annum.
(a) The full amount of principal under this
Note shall be due on June 1, 2012 (the “ Maturity
Date ”), unless due earlier in accordance with the terms
of this Note.
(b) Maker may prepay, on 3 business days
prior written notice (such notice, an “ Optional
Redemption Notice ” and the 3 rd business day following such notice, the “
Optional Redemption Date ”), in whole or in part, the
principal sum and interest under this Note without the prior
written consent of Payee provided that any prepayments shall be
redeemed at 125% of the outstanding amount being redeemed (any such
payment, an “ Optional Redemption ”). The
Optional Redemption Notice shall set forth the principal amount
subject to such Optional Redemption. If any portion of the payment
pursuant to an Optional Redemption shall not be paid by the Maker
by the applicable due date, interest shall accrue thereon at an
interest rate equal to the lesser of 18% per annum or the maximum
rate permitted by applicable law until such amount is paid in full.
The Maker’s determination to effect an Optional Redemption
shall be applied ratably among the Payee and the holders of all
Notes issued pursuant to the Plan of Reorganization submitted by
Isologen, Inc. under Chapter 11 of Title 11 of the United
States Code, 11 §§101-1532 in the United States
Bankruptcy Court fort the District of Delaware, dated June 26,
2009.
(c) The Maker shall pay interest to the
Payee on the aggregate outstanding principal amount of this Note at
the rate of 12.5% per annum, payable quarterly on January 1,
April 1, July 1 and October 1, commencing on January 1,
2010 in cash or, at the sole election of the Maker, such interest
payments may accrete to the principal amount outstanding on this
Note provided that the interest rate as to any interest payments
accreted to principal, shall be 15% per annum, accreted quarterly
per above and payable on the Maturity Date.
(a) “Event of Default”, wherever
used herein, means any one of the following events (whatever the
reason and whether it shall be voluntary or involuntary or effected
by operation of law or pursuant to any judgment, decree or order of
any court, or any order, rule or regulation of any administrative
or governmental body):
(i) any default in the payment of the
principal of, or the interest on, this Note, as and when the same
shall become due and payable;
(ii) Maker or any of its subsidiaries shall
commence under any applicable bankruptcy or insolvency laws as now
or hereafter in effect or any successor thereto, or Maker or any
subsidiary commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Maker or any
subsidiary, or there is commenced against Maker or any subsidiary
any such bankruptcy, insolvency or other proceeding which remains
undismissed for a period of 60 days; or Maker or any
subsidiary is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is
entered; or Maker or any subsidiary suffers any appointment of any
custodian or the like for it or any substantial part of its
property which continues undischarged or unstayed for a period of
60 days; or Maker or any subsidiary makes a general assignment
for the benefit of creditors; or Maker or any subsidiary shall fail
to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; or Maker or any
subsidiary shall call a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts;
or Maker or any subsidiary shall by any act or failure to act
expressly indicate its consent to, approval of or acquiescence in
any of the foregoing; or any corporate or other action is taken by
Maker or any subsidiary for the purpose of effecting any of the
foregoing; or
(iii) the Maker shall default on any of its
obligations under any indebtedness, whether such indebtedness now
exists or shall hereafter be created.
(b) If any Event of Default occurs pursuant
to subsections (i) or (iii), the full principal amount of this
Note, together with all accrued interest thereon, shall become, at
the Payee’s election, immediately due and payable in cash. If
any Event of Default occurs pursuant to subsection (ii), the full
principal amount of this Note, together with all accrued interest
thereon, shall become immediately due and payable in cash.
Commencing 5 days after the occurrence of any Event of Default that
results in the acceleration of this Note, the interest rate on this
Note shall accrue at the rate of 18% per annum, or such lower
maximum amount of interest permitted to be charged under applicable
law. The Payee need not provide and Maker hereby waives any
presentment, demand, protest or other notice of any kind, and the
Payee may immediately and without expiration of any grace period
enforce any and all of its rights and remedies hereunder and all
other remedies available to it under applicable law. Such
declaration may be rescinded and annulled by Payee at any time
prior to payment hereunder. No such rescission or annulment shall
affect any subsequent Event of Default or impair any right
consequent thereon.
2
3. No Waiver of Payee’s
Rights . All payments of principal and interest shall be made
without setoff, deduction or counterclaim. No delay or failure on
the part of the Payee in exercising any of its options, powers or
rights, nor any partial or single exercise of its options, powers
or rights shall constitute a waiver thereof or of any other option,
power or right, and no waiver on the part of the Payee of any of
its options, powers or rights shall constitute a waiver of any
other option, power or right. Maker hereby waives presentment of
payment, protest, and all notices or demands in connection with the
delivery, acceptance, performance, default or endorsement of this
Note. Acceptance by the Payee of less than the full amount due and
payable hereunder shall in no way limit the right of the Payee to
require full payment of all sums due and payable hereunder in
accordance with the terms hereof.
4. Modifications . No term or
provision contained herein may be modified, amended or waived
except by written agreement or consent signed by the party to be
bound thereby.
5. Cumulative Rights and Remedies;
Usury . The rights and remedies of Payee expressed herein are
cumulative and not exclusive of any rights and remedies otherwise
available under this Note or applicable law (including at equity).
The election of Payee to avail itself of any one or more remedies
shall not be a bar to any other available remedies, which Maker
agrees Payee may take from time to time. If it shall be found that
any interest due hereunder shall violate applicable laws governing
usury, the applicable rate of interest due hereunder shall be
reduced to the maximum permitted rate of interest under such
law.
6. Collection Expenses . If Payee
sha
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