Third Amendment to Credit Agreement



 Exhibit 10.2 
 THIRD AMENDMENT TO CREDIT AGREEMENT 
 This THIRD
AMENDMENT TO CREDIT AGREEMENT, dated as of September 11, 2009 (this “Amendment”), amends certain provisions of that certain Credit Agreement, dated as of February 13, 2008 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Credit Agreement”), among ALEXION PHARMACEUTICALS, INC., a Delaware corporation (the “Borrower”), each Lender from time to time party thereto (the
“Lenders”), BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for itself and the other Lenders, and the L/C Issuer. Any capitalized term used herein and not defined shall
have the meaning assigned to it in the Credit Agreement. 
 RECITALS 
 WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders amend certain provisions of the Credit Agreement,
as specifically set forth in this Amendment; and 
 WHEREAS, the undersigned Lenders and the Administrative Agent are
prepared to amend the Credit Agreement on the terms, subject to the conditions and in reliance on the representations set forth herein. 
 NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto hereby agree as follows: 
 Section 1. Amendments to Credit Agreement. 
 (a) Amendment to Section 1.01 (Definition of “Cash Equivalents”). The definition of “Cash
Equivalents” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (d) of such definition, (ii) deleting the “.” at the end of clause (e) of such definition
and inserting “; and” in lieu thereof, and (iii) adding the following new clause (f) to such definition in the proper alphabetical order: 
 (f) corporate debt instruments, including medium term notes and floating rate notes, issued by entities organized under the laws of the United States and payable in Dollars; provided that such corporate
debt instruments are rated A2 or better by Moody’s or A or better by S&P and mature in two years or less from the date of issuance. 
 (b) Amendment to Section 1.01 (Definition of “Letter of Credit Sublimit”). The definition of “Letter of Credit Sublimit” set forth in Section 1.01 of the Credit Agreement is
hereby amended by restating such definition in its entirety as follows: 
 “Letter of Credit Sublimit” means an
amount equal to $10,000,000. Lender Issued Guarantees are part of, and not in addition to, the Letter of Credit Sublimit. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility. 
 (c) Amendment to Section 1.01 (Definition of “Obligations”). The definition of








 
“Obligations” set forth in Section 1.01 of the Credit Agreement is hereby amended by restating such definition in its entirety as follows: 
 “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising
under any Loan Document (including, without limitation, (x) any treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management services under or in respect of Secured Cash Management Agreements and (y) all
rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of the foregoing under or in respect of Secured Hedge Agreements) or otherwise with respect to any Loan, Letter of Credit or Lender Issued
Guarantee, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. 
 (d) Amendment to Section 1.01 (Definition of “Outstanding Amount”). The definition of “Outstanding
Amount” set forth in Section 1.01 of the Credit Agreement is hereby amended by restating such definition in its entirety as follows: 
 “Outstanding Amount” means (a) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of
Loans occurring on such date; (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts; and (c) with respect to any Lender Issued Guarantees on any date, the maximum amount required to be paid under such Lender
Issued Guarantees, including all principal, interest and fees thereunder. 
 (e) Amendment to Section 1.01
(Definitions). Section 1.01 of the Credit Agreement is hereby amended by adding the following new definitions in the proper alphabetical order of such Section: 
 “Guarantee Lender” means a foreign branch or subsidiary of Bank of America issuing a Lender Issued Guarantee. 
 “Lender Issued Guarantee” means a guarantee issued by the Guarantee Lender, the terms, conditions, fees and structure of
which shall be determined by the Guarantee Lender in its sole discretion, and which, in any event shall include, without limitation, provisions substantially similar to those set forth in Section

  

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2.03(g) (as they apply to Letters of Credit) requiring the Borrower to Cash Collateralize such Lender Issued Guarantee under certain circumstances, and with respect to each Lender’s risk
participation and reimbursement obligations, provisions substantially similar to those set forth in Section 2.03 (as they apply to Letters of Credit). Lender Issued Guarantees shall be part of the Letter of Credit Sublimit. 
 (f) Amendment to Section 2.04. Section 2.04 of the Credit Agreement is hereby amended by deleting
“[Intentionally Omitted.]” and inserting in lieu thereof the following new Section 2.04: 
 2.04. Discretionary
Issuance of Lender Issued Guarantees. Upon request of the Borrower, and at the sole discretion of the Administrative Agent, the Guarantee Lender shall issue Lender Issued Guarantees (within the Letter of Credit Sublimit), the form and substance
of which shall be satisfactory to the Administrative Agent. 
 (g) Amendments to Section 7.01 (Liens).
Section 7.01 (Liens) of the Credit Agreement is hereby amended by: 
 (i) deleting the amount
“$250,000” in clause (k) of such Section and substituting the amount “$10,000,000” in lieu thereof; and 
 (ii) adding the following new sentence at the end of such Section 7.01: 
 From
and after such time as Alexion Manufacturing is no longer subject to the iStar Loan Agreement or the other iStar Loan Documents, “Permitted Liens” shall not include any Lien on the real property of Alexion Manufacturing located at 100
Technology Way, Smithfield, Rhode Island 02917 unless such Lien is permitted under clause (c) - (h) or (j) of Section 7.01. 
 (h) Amendments to Section 7.02 (Indebtedness). Section 7.02 (Indebtedness) of the Credit Agreement is hereby amended by: 
 (i) (A) deleting the amount “$2,000,000” in clause (g) of such Section 7.02 and substituting the amount
“$10,000,000” in lieu thereof, and (B) deleting the “and” at the end of Section 7.02(i); and 
 (ii) (A) deleting the amount “$500,000” in clause (j) of such Section 7.02 and substituting the amount “$10,000,000” in lieu thereof, and (B) deleting the “.” at the end of such Section 7.02(j) in substituting
“; and” in lieu thereof; and 
 (iii) adding the following new clause (k) to such Section 7.02 in the
proper alphabetical order: 
 (k) other secured Indebtedness in an aggregate principal amount not to exceed
$5,000,000. 
 (i) Amendment to Section 7.03 (Investments). Section 7.03 (Investments) of the Credit
Agreement is hereby amended by deleting the amount “$5,000,000” in clause (i) of such Section 7.03 and substituting the amount “$10,000,000” in lieu thereof. 
  

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 (j) Amendment to Section 7.11 (Financial Covenants). Section 7.11
(Financial Covenants) of the Credit Agreement is hereby amended by deleting clause (a) of such Section 7.11 and substituting in lieu thereof the following new clause (a): 
 (a) Minimum Consolidated EBITDA. Permit Consolidated EBITDA, at the end of any fiscal quarter, for the one fiscal
quarter period then ended, to be less than $25,000,000. 
 (k) Amendment to Schedule 7.03(c) (Existing
Investments). Schedule 7.03(c) (Existing Investments) to the Credit Agreement is hereby amended by deleting the amount “$120,000,000” in the first row of the table set forth in such Schedule and substituting the amount
“$300,000,000” in lieu thereof. 
 Section 2. Amendment Fee. The Borrower hereby agrees to pay to the
Administrative Agent, for the benefit of each Lender, a fee in the aggregate amount of $15,000 (the “Amendment Fee”). 
 Section 3. Conditions Precedent. This Amendment shall become effective as of the date first written above (the “Effective Date”) upon the satisfaction of the following conditions precedent: 
 (a) Documentation. Administrative Agent shall have received all of the following, in form and substance satisfactory
to Administrative Agent: 
 (i) a fully-executed and effective Amendment by the Borrower, the Guarantors, the
Administrative Agent and the Required Lenders; 
 (ii) a fully-executed Joinder Agreement (the “Joinder
Agreement”) by Alexion Manufacturing LLC, a Delaware limited liability company (“Alexion Manufacturing”), and the Administrative Agent, which shall be effective upon the repayment in full of Alexion Manufacturing’s indebtedness
to iStar Financial Inc. under the iStar Loan Documents and the other terms and conditions set forth therein; 
 (iii) a certificate signed by a Responsible Officer of the Borrower and the Guarantors certifying that there has been no change in such Person’s charter or by-laws since the Closing Date; and 
 (iv) such additional documents, instruments and information as Administrative Agent may reasonably request to effect the
transactions contemplated hereby. 
 (b) No Default. On the Effective Date and after giving effect to
this Amendment, no event shall have occurred and be continuing that would constitute an Event of Default or a Default. 
 (c) Amendment Fee. Payment of the Amendment Fee for the account of each Lender shall have been made to the Administrative Agent. 
 Section 4. Representations and Warranties; Reaffirmation of Grant. Each Loan Party hereby represents and warrants to the Administrative Agent and the Lenders that, as of the date hereof and
after giving effect to this Amendment, (a) all representations and warranties of the Loan Parties set forth

  

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in the Credit Agreement and in any other Loan Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate
to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date, (b) no Default or Event of Default has occurred and is continuing, (c) the Credit
Agreement and all other Loan Documents are and remain legally valid, binding obligations of the Loan Parties party thereto, enforceable against each such Loan Party in accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability and (d) each of the Collateral Documents to which such Loan Party is a party and
all of the Collateral described therein do and shall continue to secure the payment of all Obligations as set forth in such respective Collateral Documents. Each Loan Party that is a party to the Security Agreement or any of the Collateral Documents
hereby reaffirms its grant of a security interest in the Collateral to the Administrative Agent for the ratable benefit of the Secured Parties, as collateral security for the prompt and complete payment and performance when due of the Obligations.

 Section 5. Survival of Representations and Warranties. All representations and warranties made in this
Amendment or any other Loan Document shall survive the execution and delivery of this Amendment, and no investigation by the Administrative Agent or the Lenders shall affect the representations and warranties or the right of the Administrative Agent
and the Lenders to rely upon them. 
 Section 6. Amendment as Loan Document. This Amendment constitutes a
“Loan Document” under the Credit Agreement. Accordingly, it shall be an immediate Event of Default under the Credit Agreement if any Loan Party fails to perform, keep or observe any term, provision, condition, covenant or agreement
contained in this Amendment or if any representation or warranty made by any Loan Party under or in connection with this Amendment shall have been untrue, false or misleading when made. 
 Section 7. Costs and Expenses. The Borrower shall pay on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including the reasonable fees, charges and disbursements of counsel to the Administrative Agent) incurred in connection with the preparation, negotiation, execution and delivery of this Amendment. 
 Section 8. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE). 

Section 9. Execution. This Amendment may be executed in any number of counterparts and by different parties hereto in
separate 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. Delivery of an executed counterpart of a signature page to this Amendment by
telecopier (or electronic mail (including in PDF format)) shall be effective as delivery of a manually executed counterpart of this Amendment. 
 Section 10. Limited Effect. This Amendment relates only to the specific matters expressly

  

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covered herein, shall not be considered to be an amendment or waiver of any rights or remedies that the Administrative Agent or any Lender may have under the Credit Agreement, under any other
Loan Document (except as expressly set forth herein) or under Law, and shall not be considered to create a course of dealing or to otherwise obligate in any respect the Administrative Agent or any Lender to execute similar or other amendments or
grant any amendments under the same or similar or other circumstances in the future. 
 Section 11. Ratification by
Guarantors. Each of the Guarantors acknowledges that its consent to this Amendment is not required, but each of the undersigned nevertheless does hereby agree and consent to this Amendment and to the documents and agreements referred to
herein. Each of the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this Amendment, such Guarantor’s Guaranty shall remain in full force and effect without modification thereto and (ii) nothing herein shall in
any way limit any of the terms or provisions of such Guarantor’s Guaranty or any other Loan Document executed by such Guarantor (as the same may be amended from time to time), all of which are hereby ratified, confirmed and affirmed in all
respects. Each of the Guarantors hereby agrees and acknowledges that no other agreement, instrument, consent or document shall be required to give effect to this Section 11. Each of the Guarantors hereby further acknowledges that Borrower, the
Administrative Agent and any Lender may from time to time enter into any further amendments, modifications, terminations and/or amendments of any provisions of the Loan Documents without notice to or consent from such Guarantor and without affecting
the validity or enforceability of such Guarantor’s Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of such Guarantor’s Guaranty. 
 Section 12. No Obligation Under Section 6.12 of the Credit Agreement. The Lenders and Administrative Agent hereby agree that
the Borrower shall have no obligation to grant any security interest in the real property located at 100 Technology Way, Smithfield, Rhode Island to the Administrative Agent, for the benefit of the Secured Parties, in accordance with Section 6.12 of
the Credit Agreement or otherwise, provided that and for so long as no Event of Default has occurred and is continuing under any Loan Document, including the Joinder Agreement. 
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 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and
delivered as of the date first above written. 
  

			
	 Borrower:
  
 ALEXION PHARMACEUTICALS, INC.

		
	By:	 	/s/ Vikas Sinha
	 Name:
 Title:
	 	 Vikas Sinha
 Senior Vice
President and Chief Financial Officer











			
	 Administrative Agent:
  
 BANK OF AMERICA, N.A., as
 Administrative
Agent

		
	By:	 	/s/ Linda Alto
	 Name:
 Title:
	 	 Linda Alto
 SVP


  
  

			
	 Lenders:
  
 BANK OF AMERICA, N.A., as
 a Lender and L/C
Issuer

		
	By:	 	/s/ Linda Alto
	 Name:
 Title:
	 	 Linda Alto
 SVP









 RATIFICATION OF GUARANTY 
 Each of the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing Amendment and the Borrower’s execution thereof
and (b) joins the foregoing Amendment for the sole purpose of consenting to and being bound by the provisions of Sections 4, 5, 6 and 11 thereof. 
  

			
	 ALEXION DELAWARE HOLDING LLC
  
 By: Alexion Pharmaceuticals, Inc., its sole member

		
	By:	 	/s/ Vikas Sinha
	 Name:
 Title:
	 	 Vikas Sinha
 Senior Vice
President and Chief Financial Officer