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Exhibit
10.3
OPEN END MORTGAGE TO SECURE
PRESENT AND FUTURE LOANS UNDER CHAPTER 25 OF TITLE 34.
FIRST AMENDMENT TO
CONSTRUCTION MORTGAGE DEED, ASSIGNMENT OF
LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
ALEXION MANUFACTURING LLC, as
Mortgagor
in favor of
iSTAR FINANCIAL INC., as
Mortgagee
Dated: July 18,
2007
Location: Town of Smithfield,
Rhode Island
PREPARED BY AND WHEN RECORDED
RETURN TO:
|
| Katten Muchin Rosenman LLP |
| 525
West Monroe Street |
| Chicago, Illinois 60661-3693 |
| Attn:
Victoria Shusterman, Esq. |
OPEN END MORTGAGE TO
SECURE PRESENT AND FUTURE LOANS UNDER CHAPTER 25 OF TITLE
34.
FIRST AMENDMENT TO
CONSTRUCTION MORTGAGE DEED, ASSIGNMENT OF
LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO
CONSTRUCTION MORTGAGE DEED, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (the “Amendment
”) is made as of the 18th day of July, 2007 (the
“Effective Date” ) by ALEXION MANUFACTURING LLC,
a Delaware limited liability company, having an address at c/o
Alexion Pharmaceuticals, Inc., 352 Knotter Drive, Cheshire,
Connecticut 06410, (“ Mortgagor ”) in favor of
i STAR FINANCIAL INC., a Maryland corporation, having an
address at 1114 Avenue of the Americas, 27 th
Floor, New
York, New York 10036 (“ Mortgagee ”).
RECITALS
A. Mortgagor executed and
delivered to Mortgagee that certain Construction Mortgage Deed,
Assignment of Leases and Rents, Security Agreement and Fixture
Filing, dated as of July 11, 2006, which Mortgage was recorded
with the Records of Land Evidence of the Town of Smithfield in the
State of Rhode Island in Book 504 at Page 14 (the
“Mortgage” ), and which Mortgage encumbers among
other things, the property legally described in Exhibit
A . All terms not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Loan and Security
Agreement dated as of July 11, 2006, by and between Mortgagor
and Mortgagee, as amended by that First Amendment to Loan Agreement
and Other Loan documents dated of even date herewith (together, the
“Loan Agreement” ). All terms not otherwise
defined herein shall have the meanings ascribed to such terms in
the Loan Agreement.
B. Mortgagor has requested
and Mortgagee has agreed to, among other things, increase the Loan
to $44,000,000.00 and extend the term of the Loan.
C. Accordingly, Mortgagor and
Mortgagee now desire to amend the Mortgage.
NOW THEREFORE, the Mortgage
is hereby amended as follows:
1. All references to the Loan
in the Mortgage whether expressed in writing or in numbers, are
hereby modified from Twenty-Six Million and No/100 Dollars
($26,000,000.00) to Forty-Four Million and No/100 Dollars
($44,000,000.00). The Mortgage (as modified by this Amendment)
shall secure the Loan as increased pursuant to the terms
hereof.
2. All references in the
Mortgage to the Maturity Date are changed from August 10, 2016
to August 10, 2017.
3. Section 2.3 of
the Mortgage is hereby deleted in its entirety and the following is
inserted in lieu thereof:
“2.3 Maximum Amount
of Indebtedness . Notwithstanding anything to the contrary in
the Mortgage, the maximum aggregate principal amount of
indebtedness that is, or under any contingency may be, secured by
the Mortgage (including Mortgagor’s obligation to reimburse
advances made by Mortgagee), either at execution or at any time
thereafter, including future advances which will be advanced from
time to time from and after the date hereof and may include
readvances of amounts repaid (the “ Secured Loan
Amount ”), shall not exceed in the aggregate at any one
time the outstanding amount of EIGHTY-EIGHT MILLION AND 00/100
DOLLARS ($88,000,000.00), plus amounts that Mortgagee expends after
occurrence of an Event of Default to the extent that any such
amounts shall constitute payment of (a) taxes, charges or
assessments that may be imposed by law upon the Mortgaged Property;
(b) premiums on insurance policies covering the Mortgaged
Property; (c) expenses incurred in upholding the lien of the
Mortgage, including the expenses of any litigation to prosecute or
defend the rights and lien created by the Mortgage; or (d) any
amount, cost or charge to which Mortgagee becomes subrogated, upon
payment, whether under recognized principles of law or equity, or
under express statutory authority; then in such event, such amounts
or costs, together with interest thereon, shall be added to the
indebtedness secured hereby and shall be secured by the
Mortgage.
All persons and entities with any
interest in the Mortgaged Property or about to acquire any such
interest should be aware that the Mortgage secures more than the
stated principal amount of the Note and interest thereon; the
Mortgage secures any and all other amounts which may become due
under the Note or other document or instrument evidencing, securing
or otherwise affecting the indebtedness, including, without
imitation, any and all amounts expended by Mortgagee upon an Event
of Default to operate, manage or maintain the Mortgaged Property or
to otherwise protect the Mortgaged Property or the lien of the
Mortgage.”
4. Section 9.2 of
the Mortgage is hereby deleted in its entirety and the following is
inserted in lieu thereof:
“9.2 Rhode Island
Open-End Mortgage Provisions . The Mortgage permits and secures
any and all current and future advances to the Mortgagor evidenced
by (or pursuant to) any one or more of the following: the Note, the
Loan Documents or other documents evidencing the Obligations or the
Indebtedness, such other note or notes as may be signed by
Mortgagor payable to Mortgagee and such other agreement(s) as may
be entered into by Mortgagor with the Mortgagee, and signed by
Mortgagor. The unpaid principal balance of indebtedness outstanding
under the Mortgage shall at no time exceed $88,000,000.00.
Mortgagee will accept notices pursuant to Sections 34-25-10(b) and
34-25-11 of the General Laws of the State of Rhode Island, 1956,
Reenactment of 1995, as amended, at the address specified on page 1
of the Mortgage.”
5. Except as expressly set
forth above, all terms and conditions of the Mortgage shall remain
unchanged and in full force and effect.
[REMAINDER OF PAGE LEFT
INTENTIONALLY BLANK.
SIGNATURE PAGE
FOLLOWS.]
IN WITNESS WHEREOF ,
Mortgagor has executed this Amendment effective
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