ex10_41.htm


  
    



      Exhibit
10.41

      PROMISSORY
NOTE

      (Term
Note)

      


      


      $22,750,000.00 December
30, 2009

       

      FOR VALUE
RECEIVED, EMERGENT BIODEFENSE
OPERATIONS LANSING INC., formerly known as BioPort Corporation, a
Michigan corporation (the “Borrower”) promises to pay to
the order of HSBC REALTY CREDIT
CORPORATION (USA), a Delaware corporation (hereinafter referred to as the
“Bank”) at its office at
1130 Connecticut Avenue, N.W., 12th
Floor, Washington, D. C. 20036, or at such other place as the Bank may from time
to time direct, the sum of TWENTY-TWO MILLION SEVEN HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($22,750,000.00), with interest computed daily on the unpaid
principal balance at the Interest Rate (as such term is hereinafter defined),
and payable according to the repayment terms set forth herein (the “Loan”). The Loan is made
pursuant to a Loan Agreement of even date herewith (the “Loan Agreement”) among the
Borrower, the Bank and Emergent BioSolutions Inc. (the “Guarantor”). The Loan is
guaranteed by a Guaranty of even date herewith from the Guarantor to the Bank
(the “Guaranty”).  The
Loan is secured by, among other things, those certain Mortgages dated as of
August 25, 2006, from the Borrower in favor of the Bank, each as amended by a
First Amendment to Mortgage dated June 29, 2007, and each as further amended by
a Second Amendment to Mortgage of even date herewith (collectively, the “Mortgage”), and a Security
Agreement of even date herewith from the Borrower to the Bank (the “Security Agreement”). This
Note, the Loan Agreement, the Guaranty, the Mortgage, the Security Agreement and
any other documents entered into in connection with the Loan are referred to as
the “Loan
Documents”).

       

      Interest Rate and Payment
Terms

       

      This Note
shall bear interest at a rate per annum (the “Interest Rate”) equal to
90-day LIBOR plus three and 25/100 percent (3.25%).  “LIBOR” shall mean the rate of
interest (rounded upwards if necessary to the next 100th of one percent)
determined by the Bank to be the prevailing rate per annum at which deposits in
United States dollars for the applicable period are offered to the Bank by first
class banks in the London Interbank Market in which the Bank regularly
participates at any such time (as shown on the Reuters Screen LIBOR01 Page, at
approximately 11:00a.m. (London time) on the proposed borrowing date), or, in
the discretion of the Bank, the base, reference or other rate then designated by
the Bank for general commercial loan reference purposes, it being understood
that such rate is a reference rate, not necessarily the lowest, established from
time to time, which serves as the basis upon which effective interest rates are
calculated for loans making reference thereto.  Interest will accrue
on any non-banking day at the rate in effect on the immediately preceding
banking day.

       

      This Note
shall be payable in monthly installments of principal and interest in the amount
required to amortize this Note over fifteen (15) years, payable on the 1st day
of each month beginning January 1, 2010, and in one final balloon payment of all
accrued interest and outstanding principal on December 30, 2014 (the “Maturity Date”).

       

      The
Interest Rate on this Note:  (a) will not exceed applicable legal
limits, and in the event a payment is made by the Borrower or received by the
Bank in excess of the applicable legal limits, such excess payment shall be
credited as a payment of principal; and (b) shall be computed on the basis of
360-day year and charged for the actual number of days elapsed in each interest
calculation period.

       

      In the
event that the Bank shall determine that by reason of circumstances affecting
the interbank Eurodollar market, adequate and reasonable means do not exist for
determining  LIBOR, or Eurodollar deposits in the relevant amount and
for the relevant maturity are not available to the Bank in the interbank
Eurodollar market, the Bank shall give the Borrower prompt notice of such
determination.  If such notice is given, and until such notice is
withdrawn, the Interest Rate on this Note shall be a rate per annum equal to the
Prime Rate plus 2.25%. “Prime
Rate” means the rate per annum from time to time established by the Bank
as the Prime Rate and made available by the Bank at its main office or, in the
discretion of the Bank, the base, reference or other rate then designated by the
Bank for general commercial loan reference purposes, it being understood that
such rate is a reference rate, not necessarily the lowest, established from time
to time, which serves as the basis upon which effective interest rates are
calculated for loans making reference thereto. If, after the date of this Note,
any applicable law, treaty, regulation or directive, or any change therein or in
the interpretation or application thereof, shall make it unlawful for the Bank
to make or maintain any LIBOR loan, the Interest Rate on this Note shall be a
rate per annum equal to the Prime Rate plus 2.25%, for so long as such
illegality exists.

       

      Prepayment

       

      Upon five
(5) business days’ written notice from the Borrower to the Bank, the Borrower
may prepay the outstanding principal balance of this Note, in whole or in part,
subject to the following terms and conditions:

       

      (a)           any
prepayment must include payment of all interest accrued and unpaid on the amount
so prepaid as of the date of such prepayment;

       

      (b)           partial
prepayment shall not postpone the due date of any subsequent payment, nor shall
it change the amount of any monthly payment otherwise required to be made under
this Note, unless the Bank otherwise agrees in writing and in advance of receipt
of such partial prepayment;

       

      (c)           Borrower
shall pay a breakage fee equal to the aggregate of all costs, fees and penalties
incurred by Bank in connection with such prepayment; and

       

      (d)           if
the Interest Rate at the time of prepayment has been converted to a fixed rate
pursuant to an ISDA Master Agreement or other interest rate protection agreement
(“Master Agreement”),
the Borrower shall pay a prepayment fee equal to the aggregate of any breakage
fees related to such Master Agreement.

       

      Late
Charge

       

      In the
event the Borrower fails to make a payment of principal and/or interest in fully
collected funds within fifteen (15) days after such payment is due, the Borrower
shall pay a late charge to the Bank in an amount equal to five percent (5%) of
the overdue installment.

       

      Default
Interest

       

      Upon an
Event of Default (as such term is hereinafter defined) and until such Event of
Default is cured or this Note is paid in full, this Note shall bear interest at
a rate equal to three percent (3%) per annum above the Interest Rate in effect
on the date of such Event of Default.

       

      Events of Default and
Remedies

       

      Subject
to any applicable notice and cure periods contained in the Loan Documents, each
of the following shall constitute a default (“Event of Default”) under this
Note:

       

      (a)           A
failure to make a payment of any sum within ten (10) days of when due under this
Note.

       

      (b)           A
failure to perform or observe any of the covenants, conditions or terms of this
Note or any other Loan Document.

       

      Upon the
occurrence of an Event of Default or failure to pay the balance hereof when
otherwise due, and notwithstanding the payment of any late charges: (i) all
remaining payments under this Note shall become due and payable together with
interest accrued to the date of payment without notice, at the option of the
Bank; (ii) the Borrower shall reimburse the Bank for any reasonable expenses,
costs and attorneys’ fees which the Bank may incur in connection with the
collection of any monies due under this Note or in connection with the
enforcement of any right under this Note or under any of the Loan Documents; and
(iii) the Bank may exercise any or all of the other rights, powers and remedies
provided for in any of the Loan Documents, or now or hereafter existing at law
or in equity or by statute or otherwise.

       

      Miscellaneous

       

      The
Borrower hereby waives demand, presentment for payment, protest, and notice of
dishonor, and agrees that at any time and from time to time and with or without
consideration, the Bank may, without notice to or further consent of the
Borrower and without in any manner releasing, lessening or affecting the
obligations of the Borrower: (a) release, surrender, waive, substitute, settle,
exchange, compromise, modify, extend or grant indulgences with respect to: (i)
this Note; and (ii) all or any part of any collateral or security for this Note;
or (b) grant any extension or other postponements of the time of payment
hereof.

       

      Each
right, power and remedy of the Bank as provided for in this Note, or now or
hereafter existing at law or in equity or by statute or otherwise, shall be
cumulative and concurrent and shall be in addition to every other right, power
or remedy, and the exercise or beginning of the exercise by the Bank of any one
or more of such rights, powers or remedies shall not preclude the simultaneous
or later exercise by the Bank of any or all of such other rights, powers or
remedies.

       

      No
failure or delay by the Bank to insist upon the strict performance of any term,
condition or covenant of this Note, or to exercise any right, power or remedy
upon a breach hereof, shall constitute a waiver of any such term, condition or
covenant or of any such breach, nor shall it preclude the Bank from exercising
any such right, power or remedy at any later time or times, unless such waiver
is in writing signed by an authorized representative of the Bank. If the Bank
accepts any payment after its due date, this does not constitute a waiver of the
Bank’s right to receive timely payment of all other subsequent amounts or to
declare a default for the failure to make any other subsequent payment when
due.

       

      Any
payment on this Note coming due on a day on which the Bank is not open to
conduct full banking business shall be due on the next succeeding business day.
Each payment hereunder may be applied to pay interest, principal, late fees or
costs as the Bank, in its sole discretion, may determine.

       

      All notices under this Note shall be
given as provided in the Loan Agreement.

       

      The
Borrower authorizes the Bank to disburse funds represented by this Note to the
Borrower and agrees that such disbursement shall be deemed to be full and
absolute consideration for the undertaking to make payment hereunder. The
Borrower hereby authorizes the Bank to disclose to any subsidiary or affiliate
of the Bank, to any fiduciary institution or to any banking institution, credit
union or savings and loan association organized under the laws of any State, and
hereby authorizes all subsidiaries and affiliates of the Bank, to disclose to
the Bank, the financial records of the Borrower.

       

      THE
BORROWER AND THE BANK HEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREIN. THE BORROWER
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE BANK THAT THE PROVISIONS OF THIS
PARAGRAPH CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE BANK HAS RELIED, IS
RELYING AND WILL RELY IN MAKING THE LOAN. THE BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE BANK (INCLUDING ITS COUNSEL) HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION,
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL. THE BORROWER ACKNOWLEDGES THAT IT
HAS CONSULTED WITH AN ATTORNEY AND FULLY UNDERSTANDS THE LEGAL EFFECT OF THE
PROVISIONS OF THIS PARAGRAPH.

       

      This Note
shall be governed by and construed under and in accordance with the laws of the
State of Maryland (but not including the choice of law rules thereof). The
Borrower hereby submits to the non-exclusive jurisdiction of any State of
Maryland court or Federal court sitting in the State of Maryland in any action
or proceeding arising out of or relating to this Note, and hereby waives any
objection it may have to the laying of venue of any such action or proceeding in
any of said courts and any claim that it may have that any such action or
proceeding has been brought in an inconvenient forum. A final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.

       

      Whenever
used herein, the word “Borrower” or “Bank” shall be deemed to include, as
appropriate, its/his/her respective heirs, personal representatives, successors
and assigns. All words used herein shall be deemed to refer to the singular,
plural, masculine, feminine or neuter as the identity of the person or entity or
the context may require.

       

      Borrower
has previously executed and delivered to Bank that certain Promissory Note dated
June 29, 2007, in the original principal amount of $30,000,000.00 (the “Original
Note”).  In connection with the execution and delivery of this Note,
the Original Note shall be hereby terminated and replaced with this Note
evidencing a total loan amount of $22,750,000.00.

       

      (Signature
Page Follows)


      
        
           


        

        
           


           


        

        
           


        

      


      IN
WITNESS WHEREOF, the Borrower has duly executed this Note under seal as of the
date and year first hereinabove set forth.

       

      EMERGENT BIODEFENSE
OPERATIONS

      LANSING
INC., formerly known as BioPort Corporation, a Michigan corporation

      


      By:/s/R. Don Elsey
(SEAL)

      Name:R. Don
Elsey

      Title:Treasurer

      


      



      
        
           


        

        
           


           


        

        
           


        

      


      CONSENT OF THE
GUARANTOR

       

      The
undersigned Guarantor hereby consents to the terms of this Note and acknowledges
it has guaranteed this Note pursuant to the terms of that certain Guaranty
executed by the undersigned of even date herewith.

       

      EMERGENT BIOSOLUTIONS
INC.,

      a Delaware corporation

      


      


      By: /s/Jay G.
Reilly(SEAL)

      Name: Jay G.
Reilly

      Title:
Assistant
Secretary