Waiver and Second Amendment to Credit Agreement



 Exhibit 10.1 
 WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT 
 This
WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of July 23, 2009 (this “Amendment”), modifies and waives 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 informed the Administrative Agent and the Lenders that a certain Event of Default has occurred and is
continuing solely as of the date hereof due to the Borrower’s failure to comply with Section 7.03(c)(i) of the Credit Agreement as a result of Investments by the Borrower in Alexion International Sarl in excess of the sum of permitted existing
Investments of $80,000,000 set forth in Schedule 7.03(c) plus the additional permitted Investment of $5,000,000 pursuant to Section 7.03(c)(iii) of the Credit Agreement, (the “Specified Default”); 
 WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders waive the Specified Default and agree to amend
Schedule 7.03(c) and certain other provisions of the Credit Agreement, as specifically set forth in this Amendment; and 
 WHEREAS, the undersigned Lenders and the Administrative Agent are prepared to waive the Specified Default and 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. Waiver. Subject to the satisfaction of all of the terms and conditions set forth
herein, the undersigned Lenders and the Administrative Agent hereby waive the Specified Default prior to the Effective Date (as defined below). This waiver shall not impair any right or power accruing to any Lender or the Administrative Agent with
respect to any other Default or Event of Default or any Default or Event of Default which occurs after the Effective Date. Nothing contained herein shall be deemed to imply any willingness of any Lender or the Administrative Agent to agree to, or
otherwise prejudice any rights of any Lender or the Administrative Agent with respect to, any similar waiver that may be requested by the Borrower. Upon the occurrence of any Default or Event of Default (other than the Specified Default), the
Lenders and the Administrative Agent may take any and all actions permitted to be taken by the Lenders and the Administrative Agent under the Credit Agreement, the other Loan Documents and applicable Law. 
 Section 2. Amendment to Credit Agreement. Schedule 7.03(c) (Existing Investments) of the Credit Agreement is hereby amended by
deleting the amount “$80,000,000” in the first row of the table set forth in such Schedule and substituting the amount “$120,000,000” therefor. 







 Section 3. 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 $2,000 (the “Amendment Fee”). 
 Section 4. Condition 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) 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 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 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 waivers or grant any
amendments or waivers 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. 







 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