**Exhibit10.5**

 

FIRST AMENDMENT TOAND REAFFIRMATION OFGUARANTY OF NON-RECOURSE EXCEPTIONS

 

This FIRST AMENDMENT TOAND REAFFIRMATION OF GUARANTY OF NON-RECOURSE EXCEPTIONS (this “Amendment”), ismade as of the 28th day of June, 2004, by and between PRAECISPHARMACEUTICALS INCORPORATED, a Delaware Corporation (“Guarantor”), with anaddress at 830 Winter Street, Waltham, Massachusetts 02451 and ANGLO IRISH BANKCORPORATION PLC (“Lender”), with an address at 84 State Street, Boston,Massachusetts 02109.

 

WITNESSETH:

 

Reference is hereby madeto the following facts:

 

A.                                   Lenderhas made that certain Loan (the “Loan”) to 830 Winter Street LLC, a Delawarelimited liability company (the “Borrower”), which Loan is secured by certainreal property and improvements located at 830 Winter Street in Waltham,Middlesex County, Massachusetts (the “Property”).  In connection therewith, the Borrower executed and delivered tothe Lender (or caused to be executed and delivered to the Lender), among otherthings, the following (collectively, together with all other documents andinstruments heretofore executed and delivered in connection with the Loan, andall amendments and modifications thereto, the “Existing Loan Documents”):

 

1.                                       Thatcertain Acquisition and Construction Loan Agreement (the “Original LoanAgreement”), dated as of July 11, 2000, between the Borrower and theLender;

 

2.                                       Thatcertain Promissory Note (the “Original Note”), dated as of July 11, 2000,made by the Borrower, payable to the order of the Lender, in the originalprincipal amount of $33,000,000.00;

 

3.                                       Thatcertain Construction Mortgage and Security Agreement (the “Original Mortgage”),dated as of July 11, 2000, from the Borrower, as mortgagor, to the Lender,as mortgagee, filed with the Middlesex South Registry District of the LandCourt (the “Land Court”) as Document No. 1144043;

 

4.                                       Thatcertain Assignment of Leases and Rents (the “Original Assignment of Leases”),dated as of July 11, 2000, from the Borrower, as assignor, to the Lender,as assignee, filed with the Land Court as Document No. 1144044;

 

5.                                       Thatcertain Collateral Assignment and Security Agreement in respect of Contracts,Licenses and Permits (the “Original Collateral Assignment

 

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of Contracts, Licensesand Permits”), dated as of July 11, 2000, made by the Borrower in favor ofthe Lender;

 

6.                                       Thatcertain Guaranty of Costs and Completion (the “Costs and Completion Guaranty”)dated as of July 11, 2000, made the Guarantor in favor of Lender;

 

7.                                       Thatcertain Guaranty of Non-Recourse Exceptions (the “Original Non-RecourseExceptions Guaranty”) dated as of July 11, 2000, made by Guarantor infavor of Lender;

 

8.                                       Thatcertain Environmental Compliance and Indemnity Agreement (the “OriginalEnvironmental Indemnity”), dated as of July 11, 2000, made jointly andseverally by the Borrower and the Guarantor in favor of the Lender;

 

9.                                       Thosecertain UCC-1 Financing Statements (collectively, the “Original UCC-1 FinancingStatements”) filed with the Secretary of State of Massachusetts and with the LandCourt as Document No. 11044045; and

 

10.                                 Certainother collateral security documents.

 

B.                                     Priorto the date hereof, Project Completion has been achieved, the Loan has beenfully funded by the Lender to the Borrower and the Initial Term has beenextended to July 30, 2004 in accordance with the terms of the ExistingLoan Documents.

 

C.                                     Lenderand Borrower have agreed to further extend the maturity date of the Loan and tomodify and amend the Loan in certain respects. In connection therewith the Borrower, the Lender and the Guarantor, asapplicable, have agreed as follows: (i) to modify, amend and reaffirm theOriginal Non-Recourse Exceptions Guaranty pursuant to this Amendment; (ii) tomodify and amend the Original Loan Agreement, pursuant to that certain FirstAmendment to Acquisition and Construction Loan Agreement (the “First LoanAgreement Amendment”), of even date herewith; (iii) to modify and amend theOriginal Mortgage pursuant to that certain First Amendment to ConstructionMortgage and Security Agreement (the “First Mortgage Amendment”), of even dateherewith; (iv) to modify and amend the Original Assignment of Leases, pursuantto that certain First Amendment to Assignment of Leases and Rents (the “FirstAssignment of Leases Amendment”), of even date herewith; (v) to modify, amendand reaffirm the Original Collateral Assignment of Contracts, Licenses andPermits pursuant to that certain First Amendment to Collateral Assignment andSecurity Agreement in respect of Contracts, Licenses and Permits (the “FirstCollateral Assignment of Contracts, Licenses and Permits Amendment”), of evendate herewith; (vi) to modify and amend the Original Note, pursuant to thatcertain First Amendment and Allonge to Note (the “First Note Amendment”), ofeven date herewith; (vii) to modify, amend and reaffirm the OriginalEnvironmental Indemnity, pursuant to that certain First Amendment to andReaffirmation of Environmental Compliance and Indemnity Agreement (the “FirstEnvironmental

 

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Indemnity Amendment”), ofeven date herewith; (viii) to modify the Original UCC-1 Financing Statementspursuant to UCC-3 Financing Statements and to file a new UCC-1 FinancingStatement with the Secretary of the State of Delaware (collectively, the“Financing Statement Amendments”) of even date herewith.  This Amendment, the First Loan AgreementAmendment, the First Mortgage Amendment, the First Assignment of LeasesAmendment, the First Collateral Assignment of Contracts, Licenses and PermitsAmendment, the First Note Amendment, the First Environmental IndemnityAmendment, the Financing Statement Amendments, together with all otherdocuments and instruments being executed concurrently herewith, are referred toherein collectively as the “Amendment Documents.”

 

D.                                    TheOriginal Non-Recourse Exceptions Guaranty, as modified, amended and reaffirmedby this Amendment, is hereinafter referred to as the “Guaranty.”  All capitalized words and phrases used inthis Amendment and not otherwise defined herein shall have the meaningsascribed to them in the Loan Agreement and the First Loan Agreement Amendment.

 

NOW, THEREFORE, inconsideration of $10.00 and other good and valuable consideration, the receipt,sufficiency and delivery of which are hereby acknowledged, the Borrower, theGuarantor, and the Lender hereby agree as follows:

 

1.                                       The“Guaranteed Obligations” guaranteed pursuant to the Guaranty shall include,without limitation, all obligations, indebtedness, debts and liabilities ofBorrower to the Lender, as modified, amended and supplemented by the AmendmentDocuments, including, without limitation, all principal, interest, fees andother charges due from time to time under the Note.  The Guarantor hereby consent to the execution and delivery of theAmendment Documents, and acknowledge and agree that the entering into andperformance by the parties thereunder shall in no way impair, limit, detract orderogate from the obligations and liabilities of the Guarantor pursuant to theGuaranty.

 

2.                                       Allreferences in the Guaranty to the Note shall be deemed to refer yto theOriginal Note, as amended by the First Note Amendment, all references in theGuaranty to the Security Deed shall be deemed to refer to the OriginalMortgage, as amended by the First Mortgage Amendment; all references in theGuaranty to the Loan Agreement shall be deemed to refer to the Original LoanAgreement, as amended and reaffirmed by the First Loan Agreement Amendment; andall references in the Guaranty to the Loan Documents shall be deemed to referto the Existing Loan Documents, as modified, amended and supplemented by theAmendment Documents.

 

3.                                       TheGuarantor represents and warrants that it does not have any claims, defenses,counterclaims or set-offs against Lender in connection with the Loan, nor anybasis for any such claim, defense, counterclaim or set-off.  All of the warranties, representations andcovenants of the Guarantor contained in the Original Non-Recourse ExceptionsGuaranty are hereby remade, reaffirmed and ratified as of the date hereof.

 

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4.                                       Exceptas expressly set forth herein, the Original Non-Recourse Exceptions Guarantyand all of the terms, conditions and provisions thereof, shall remain unalteredand unmodified and in full force and effect.

 

[Signatures onnext page]

 

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IN WITNESS WHEREOF, eachof the Lender and the Guarantor have caused this Amendment to be executed as aninstrument under seal, as of the date set forth above.

 

 
|   | BORROWER: |   | PRAECIS PHARMACEUTICALS  INCORPORATED, a Delaware  corporation, its sole member |
|--------|-----------|--------|---------------------------------------------------------------------------------|
|   |      |   |
|   |      |   |
|   |      | By:    | /s/ Kevin F. McLaughlin                                                         |   |
|   |      |   | Name:                                                                           |   |   |
|   |      |   | Title:                                                                          | Exec. V.P. and C.F.O. |   |
|   |      |   | Hereunto duly  authorized                                                       |
|        |           |        |                                                                                 |  |  |  |  |

 

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|   | LENDER: | ANGLO IRISH BANK  CORPORATION  PLC |
|--------|---------|------------------------------------|
|   |    |
|   |    |
|   | By:     | /s/ Paul Doyle                     | (seal) |
|   |    | Name:                              | Paul Doyle |
|   |    | Title:                             | Vice President |
|   |    | Hereunto duly  authorized          |
|        |         |                                    |  |  |  |

 

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