exv10w5



 






Exhibit 10.5


AMENDED AND RESTATED SECURITY AGREEMENT



Dated as of June 30, 2003



between



WACHOVIA DEVELOPMENT CORPORATION,

as the Borrower



and



WACHOVIA BANK, NATIONAL ASSOCIATION,

as the Agent for the Secured Parties



and accepted and agreed to by



HUMAN GENOME SCIENCES, INC.



 











 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	1.	 	 	Definitions
	 	 	3	 
	 	2.	 	 	Grant of Security Interest
	 	 	3	 
	 	3.	 	 	Representations and Warranties
	 	 	5	 
	 	4.	 	 	Payment of Obligations
	 	 	6	 
	 	5.	 	 	Other Covenants
	 	 	6	 
	 	6.	 	 	Default; Remedies
	 	 	6	 
	 	7.	 	 	Remedies Not Exclusive
	 	 	7	 
	 	8.	 	 	Performance by the Agent of the Borrower’s Obligations
	 	 	7	 
	 	9.	 	 	Duty of the Agent
	 	 	8	 
	 	10.	 	 	Powers Coupled with an Interest
	 	 	8	 
	 	11.	 	 	Execution of Financing Statements
	 	 	8	 
	 	12.	 	 	Security Agreement Under Uniform Commercial Code
	 	 	8	 
	 	13.	 	 	Authority of the Agent
	 	 	9	 
	 	14.	 	 	Notices
	 	 	9	 
	 	15.	 	 	Severability
	 	 	10	 
	 	16.	 	 	Amendment in Writing; No Waivers; Cumulative Remedies
	 	 	10	 
	 	17.	 	 	Section Headings
	 	 	10	 
	 	18.	 	 	Successors and Assigns
	 	 	10	 
	 	19.	 	 	The Borrower’s Waiver of Rights
	 	 	10	 
	 	20.	 	 	GOVERNING LAW
	 	 	11	 
	 	21.	 	 	Obligations Are Without Recourse
	 	 	11	 
	 	22.	 	 	Partial Release; Full Release
	 	 	11	 
	 	23.	 	 	Miscellaneous
	 	 	11	 
	 	24.	 	 	Conflicts with Participation Agreement
	 	 	12	 
	 	25.	 	 	THE LESSEE AS A PARTY
	 	 	12	 
	 	26.	 	 	Counterparts
	 	 	13	 
	 	27.	 	 	Amendment and Restatement
	 	 	13	 



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AMENDED AND RESTATED SECURITY AGREEMENT



     THIS AMENDED AND RESTATED SECURITY AGREEMENT, dated as of June 30, 2003
(as amended, modified, extended, supplemented and/or restated from time to
time, this “Security Agreement”), is made between WACHOVIA DEVELOPMENT
CORPORATION, a North Carolina corporation, as the borrower (the “Borrower”),
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (the
“Bank”), as agent for (a) the Credit Lenders (hereinafter defined) under the
Amended and Restated Credit Agreement (Credit Loans) dated as of June 30, 2003
(as amended, modified, extended, supplemented and/or restated from time to
time, the “Credit Loan Agreement”) by and among the Borrower, Variable Funding
Capital Corporation (“VFCC”) and the several banks and other financial
institutions from time to time parties thereto (VFCC and the foregoing banks
and financial institutions are collectively referenced as the “Credit Lenders”)
and Wachovia Bank, National Association, as the agent for the Credit Lenders,
(b) the Mortgage Lenders (hereinafter defined) under the Amended and Restated
Credit Agreement (Mortgage Loans) dated as of June 30, 2003 (as amended,
modified, extended, supplemented and/or restated from time to time, the
“Mortgage Loan Agreement”) by and among the Borrower, VFCC and the several
banks and other financial institutions from time to time parties thereto (VFCC
and the foregoing banks and financial institutions are collectively referenced
as the “Mortgage Lenders”) and Wachovia Bank, National Association, as the
agent for the Mortgage Lenders, (c) the Lessor, (d) the Hedge Providers and (e)
itself. The Credit Lenders, the Mortgage Lenders, the Lessor, the Hedge
Providers and the Agent, together with their successors and permitted assigns,
are collectively referred to hereinafter as the “Secured Parties.” The Bank,
in its capacity as agent for the Secured Parties is referred to hereinafter as
the “Agent,” and this Security Agreement is accepted and agreed to by HUMAN
GENOME SCIENCES, INC., a Delaware corporation (the “Lessee”).


Preliminary Statement



     A.     WHEREAS, the Lessee, Traville LLC, the Trust, Wells Fargo Bank
Northwest, National Association, BancBoston Leasing Investments Inc., Wachovia
Bank, National Association (as successor in interest to First Union National
Bank), EagleFunding Capital Corporation, Fleet Securities, Inc., and Fleet
National Bank were parties to that certain Participation Agreement dated as of
November 7, 2001 (as amended, modified, extended, supplemented and/or restated
from time to time, the “Original Participation Agreement”);


     B.     WHEREAS, pursuant to the Master Transfer Agreement, among other things,
(i) the Credit Lenders obtained an assignment of the right, title and interest
of the tranche a lenders under the Original Participation Agreement and the
associated transaction documents with regard to the Property and (ii) the
Mortgage Lenders obtained an assignment of the right, title and interest of the
tranche b lenders under the Original Participation Agreement and the associated
transaction documents with regard to the Property;


     C.     WHEREAS, such assignment as referenced in Recital B included an
assignment in favor of (i) the Conduit (with regard to the Property) of the
right, title and interest of EagleFunding Capital Corporation in and to the A
Loan Agreement dated as of November 7,


 






 


2001 (as amended, modified, extended, supplemented and/or restated, the
“Original A Loan Agreement”) among the Trust, EagleFunding Capital Corporation,
Fleet Security, Inc., Fleet National Bank and Wachovia Bank, National
Association (as successor in interest to First Union National Bank) and the
associated transaction documents and the B Loan Agreement dated as of November
7, 2001 (as amended, modified, extended, supplemented and/or restated, the
“Original B Loan Agreement”) among the Trust, EagleFunding Capital Corporation,
Fleet Security, Inc., Fleet National Bank and Wachovia Bank, National
Association (as successor in interest to First Union National Bank) and the
associated transaction documents, (ii) the Investors (with regard to the
Property) of the right, title and interest of Fleet National Bank and Wachovia
Bank, National Association (as successor in interest to First Union National
Bank) in their capacities as liquidity providers pursuant to the Original A
Loan Agreement and the Original B Loan Agreement, (iii) the Lessor (with regard
to the Property) of the right, title and interest of the Trust pursuant to the
Original Participation Agreement and the associated transaction documents and
(iv) the Agent (with regard to the Property) of the right, title and interest
of Fleet National Bank, in its capacity as administrative agent pursuant to the
Original Participation Agreement and the associated transaction documents
(including without limitation in such associated transaction documents is the
Security Agreement dated as of November 7, 2001 (as amended, modified,
extended, supplemented and/or restated from the time to time, the “Original
Security Agreement”)) among EagleFunding Capital Corporation, Fleet Securities,
Inc., Fleet National Bank, Wachovia Bank, National Association (as successor in
interest to First Union National Bank), BancBoston Leasing Investments Inc.,
Genome Statutory Trust 2001A and Human Genome Sciences, Inc.;


     D.     WHEREAS, pursuant to (i) the Credit Loan Agreement, the Credit Lenders
have agreed to make the Credit Loans in favor of the Borrower up to the Credit
Loan Commitment, (ii) the Mortgage Loan Agreement, the Mortgage Lenders have
agreed to make the Mortgage Loans in favor of the Borrower up to the Mortgage
Loan Commitments and (iii) the Participation Agreement, the Lessor has agreed
to make the Lessor Advances up to the Lessor Commitment;


     E.     WHEREAS, the Hedge Providers have agreed to provide interest rate
protection pursuant to the Hedging Agreements;


     F.     WHEREAS, the parties to this Agreement wish to amend and restate the
Original Security Agreement as such agreement relates to the Property, pursuant
to the terms of this Agreement; and


     G.     WHEREAS, it is a condition, among others, to the obligation of the
Credit Lenders to make the Credit Loans, the Mortgage Lenders to make the
Mortgage Loans, the Lessor to make the Lessor Advances and the Bank to act in
the capacity as Agent that the Borrower shall have executed and delivered this
Security Agreement to the Agent, for the benefit of the Secured Parties.


     NOW, THEREFORE, in consideration of the premises and to induce the Credit
Lenders to make the Credit Loans, the Mortgage Lenders to make the Mortgage
Loans, the Lessor to make the Lessor Advances, the Hedge Providers to provide
interest rate protection pursuant to


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the Hedging Agreements and the Bank to act in the capacity as Agent, the
Borrower hereby agrees with the Agent, for the benefit of the Secured Parties,
as follows:



	 	1.	 	Definitions.




		
	 	     (a) The following terms are used herein as defined in the Uniform
Commercial Code as in effect from time to time in the State of New York
(the “UCC”): Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, General Intangibles, Instruments, Investment
Property, Letter-of-Credit Rights and Proceeds. Each such term as used
in relationship with the Borrower and/or the Lessee shall mean such
property only to the extent arising from or relating to the transactions
contemplated by the Operative Agreements or arising directly or
indirectly from or otherwise relating to (i) the ownership by the
Borrower and/or the Lessee of, (ii) the right, title or interest of the
Borrower and/or the Lessee in, (iii) the planning, design, engineering,
construction, development, completion, insuring, operation, maintenance,
modification, alteration, lease, sublease or use of, or (iv) the sale,
casualty, condemnation, assignment, transfer, pledge, encumbrance or
other disposition of, the Property or any part thereof or any other
property financed pursuant to the Operative Agreements. For the
avoidance of doubt, (i) the term “Accounts” as used herein shall exclude
all accounts receivable of the business and operations of the Borrower
and/or the Lessee and (ii) the term “General Intangibles” as used herein
shall exclude all trademarks, trade names and symbols of the Borrower
and/or the Lessee.
	 
	 	     (b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in
Appendix A to the Amended and Restated Participation Agreement dated as
of June 30, 2003 (as amended, modified, extended, supplemented and/or
restated from time to time in accordance with the applicable provisions
thereof, the “Participation Agreement”) among the Lessee, the Borrower,
VFCC, the various banks and other financial institutions which are
parties thereto from time to time, as the investors, Wachovia Securities,
LLC, as the deal agent, and the Bank, as agent for the Primary Financing
Parties and, respecting the Security Documents, as the agent for the
Secured Parties.
	 
	 	     (c) The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.




	 	2.	 	Grant of Security Interest.



     To secure the payment and performance of all the Obligations, THE BORROWER
HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS, HYPOTHECATES, MORTGAGES AND SETS
OVER TO THE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, BUT SUBJECT TO THE
EXCLUSION SET FORTH IN THIS SECTION 2, A FIRST PRIORITY SECURITY INTEREST IN
AND LIEN ON ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO THE BORROWER’S
INTEREST (AS THE TERM “BORROWER’S INTEREST” IS DEFINED IN APPENDIX A TO THE
PARTICIPATION AGREEMENT), WHETHER NOW EXISTING OR HEREAFTER


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ACQUIRED, IN EACH OF THE FOLLOWING, BUT SOLELY TO THE EXTENT SUCH RIGHT, TITLE
OR INTEREST IS ACQUIRED WITH RESPECT TO THE PROPERTY, ANY OPERATIVE AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED THEREBY:



		
	 	     (a) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Accounts;




		
	 	     (b) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Chattel Paper
(including without limitation all rights under the Lease);




		
	 	     (c) [Reserved];




		
	 	     (d) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Documents;




		
	 	     (e) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Equipment;




		
	 	     (f) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Fixtures;




		
	 	     (g) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all General
Intangibles, including without limitation (i) all rights to payment and
all indemnity rights under the Operative Agreements, (ii) all books and
records relating to or used in connection with the operation of the
Property or any part thereof, (iii) all unearned premiums under insurance
policies now held or subsequently obtained by the Lessee relating to the
Property, (iv) all consents, licenses, certificates and other
governmental approvals relating to construction, completion, use or
operation of the Property or any part thereof, and (v) all Construction
Documents relating to the Property; specifically excluding however,
trademarks, trade names and symbols;




		
	 	     (h) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Instruments;
	 
	 	     (i) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Investment
Property;
	 
	 	     (j) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Letter-of-Credit
Rights;
	 
	 	     (k) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, the Property and each
part thereof;



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	 	     (l) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all money, cash or
cash equivalent and Deposit Accounts;
	 
	 	     (m) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all Proceeds,
including without limitation (i) all Rent and all other rents, payments,
purchase prices, receipts, revenues, issues and profits payable under the
Lease or pursuant to any other lease with respect to the Property, (ii)
subject to application thereof in accordance with the terms of the Lease,
all proceeds of any insurance policies maintained pursuant to the
Operative Agreements by third parties for the benefit of the Borrower,
including without limitation any right to collect and receive such
proceeds and (iii) all awards and other compensation, including without
limitation the interest payable thereon and any right to collect and
receive the same, made to the present or any subsequent owner of the
Property for the taking by eminent domain, condemnation or otherwise, of
all or any part of the Property or any easement or other right therein;
and
	 
	 	     (n) excluding in all cases all right, title and interest of the
Borrower in and to any and all Hedging Agreements, all right, title and
interest of the Borrower in and to all substitutes, modifications and
replacements of, and all additions, accessions and improvements to, the
Fixtures and Equipment, subsequently acquired or leased by the Borrower
or constructed, assembled or placed by the Borrower on the Property,
immediately upon such acquisition, lease, construction, assembling or
placement, and in each such case, without any further conveyance,
assignment or other act by the Borrower;



     (All of the foregoing property and rights and interests now owned or held
or subsequently acquired by the Borrower and described in the foregoing clauses
(a) through (n) are collectively referred to as the “Security Assets”).


     TO HAVE AND TO HOLD the Security Assets and the rights and privileges
hereby granted unto the Agent (for the benefit of the Secured Parties) its
successors and assigns for the uses and purposes set forth, until all of the
Commitments have been terminated and all of the Obligations owing to the
Secured Parties are paid in full; provided, that EXCLUDED from the Security
Assets at all times and in all respects shall be (i) all Excepted Payments and
(ii) all right, title and interest of the Borrower in and to any and all
Hedging Agreements.



	 	3.	 	Representations and Warranties.



     The Lessee hereby represents and warrants that the Lessee has taken, or
caused to be taken, all steps necessary to cause good title and legal ownership
of the Security Assets to be conveyed to the Borrower, subject to Permitted
Liens and Lessor Liens, or has otherwise caused the Borrower to posses rights
in the Security Assets sufficient to permit the Borrower to grant the Liens
described in Section 2 hereof, free and clear of all Liens other than Permitted
Liens and Lessor Liens.


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	 	4.	 	Payment of Obligations.



     The Borrower shall pay all Obligations in accordance with the terms of the
Operative Agreements.



	 	5.	 	Other Covenants.




		
	 	     (a) At any time and from time to time, upon the written request of
the Agent, and at the expense of the Borrower (with funds provided by the
Advances or by the Lessee for such purpose in accordance with the terms
of the Operative Agreements), the Borrower will promptly and duly execute
and deliver such further instruments and documents and take such further
actions as the Agent reasonably may request for the purposes of obtaining
or preserving the full benefits of this Security Agreement and of the
rights and powers granted by this Security Agreement.
	 
	 	     (b) The Borrower will not, and none of the Financing Parties
authorizes the Borrower to, sell, exchange transfer, assign, lease or
otherwise dispose of the Security Assets or any interest therein except
as permitted under the Operative Agreements.
	 
	 	     (c) The Borrower shall execute and deliver all agreements,
assignments, instruments or other documents as reasonably requested by
the Agent for the purpose of obtaining and maintaining control within the
meaning of the UCC with respect to any Security Assets consisting of
Deposit Accounts and Letter-of-Credit Rights.




	 	6.	 	Default; Remedies.




		
	 	     (a) If a Credit Agreement Event of Default has occurred and is continuing:




		
	 	     (i) subject to such notice as may be required by applicable
law, the Agent, in addition to all other remedies available at law
or in equity, shall have the right forthwith (subject to the rights
of Lessee pursuant to Section 8.14 of the Participation Agreement)
to enter upon the Property (or any other place where any component
of any Security Assets is located at such time) without charge, and
take possession of all or any portion of the Security Assets, and
to sell, re-let or otherwise dispossess itself of the Security
Assets and receive the rents, issues and profits thereof, to make
repairs and to apply said rentals and profits, after payment of all
necessary or proper charges and expenses, on account of the amounts
hereby secured (subject to the Excepted Payments); and
	 
	 	     (ii) the Agent, shall, as a matter of right, be entitled to
the appointment of a receiver for the Security Assets, and the
Borrower hereby consents to such appointment and waives notice of
any application therefor.




		
	 	     (b) If a Credit Agreement Event of Default has occurred and is
continuing, the Agent may proceed by an action at law, suit in equity or
other appropriate proceeding, to protect and enforce its rights, whether
for the foreclosure of the Lien of this Security



6






 







		
	 	Agreement, or for the specific performance of any agreement contained
herein or for an injunction against the violation of any of the terms
hereof. The proceeds of any sale of any of the Security Assets shall be
applied pursuant to Section 8.7 of the Participation Agreement. In
addition, the Agent may proceed under Section 11 hereof.
	 
	 	     (c) The Borrower hereby waives the benefit of all appraisement,
valuation, stay, extension and redemption laws now or hereafter in force
and all rights of marshalling in the event of any sale of the Security
Assets or any portion thereof or interest therein.




	 	7.	 	Remedies Not Exclusive.



     The Agent shall be entitled to enforce payment of the indebtedness and
performance of the Obligations and to exercise all rights and powers under this
Security Agreement or under any of the other Operative Agreements or any laws
now or hereafter in force, notwithstanding some or all of the Obligations may
now or hereafter be otherwise secured, whether by deed of trust, mortgage,
security agreement, pledge, Lien, assignment or otherwise. Neither the
acceptance of this Security Agreement nor its enforcement, shall prejudice or
in any manner affect the Agent’s right to realize upon or enforce any other
security now or hereafter held by the Agent as security for the Obligations, it
being agreed that the Agent shall be entitled to enforce this Security
Agreement and any other security now or hereafter held by the Agent in such
order and manner as the Agent may determine in its absolute discretion. Every
power or remedy given by any of the Operative Agreements to the Agent or to
which it may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by the
Agent. In no event shall the Agent, in the exercise of the remedies provided
in this Security Agreement (including without limitation in connection with the
assignment of Rents to the Agent, or the appointment of a receiver and the
entry of such receiver onto all or any part of the Property), be deemed a
“mortgagee in possession” or a “pledgee in possession”, and the Agent shall not
in any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.



	 	8.	 	Performance by the Agent of the Borrower’s Obligations.



     If the Borrower fails to perform or comply with any of its agreements
contained herein the Agent, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
agreement. The reasonable expenses of the Agent incurred in connection with
actions undertaken as provided in this Section 8, together with interest
thereon at a rate per annum equal to the Overdue Rate, from the date of payment
by the Agent to the date reimbursed by the Borrower, shall be payable by the
Borrower (to the extent relating solely to a Credit Agreement Event of Default
which is wholly unrelated to any Lease Event of Default or any Agency Agreement
Event of Default with funds provided by the Advances or by the Lessee for such
purpose in accordance with the terms of the Operative Agreements) to the Agent
on demand and constitutes part of the Obligations secured hereby.


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	 	9.	 	Duty of the Agent.



     The Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of any Security Assets in its possession, if any, shall
be to deal with it in the same manner as the Agent deals with similar property
for its own account. Neither the Agent nor any other Secured Party nor any of
their respective directors, officers, employees, shareholders, partners or
agents shall be liable for failure to demand, collect or realize upon any of
the Security Assets or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Security Assets upon the request
of the Borrower or any other Person or to take any other action whatsoever with
regard to the Security Assets or any part thereof.



	 	10.	 	Powers Coupled with an Interest.



     All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the Liens created hereby are released.



	 	11.	 	Execution of Financing Statements.



     Each of the Borrower and the Lessee authorizes the Agent at the expense of
the Borrower or the Lessee, as applicable (such amounts to be paid with the
Advances or with funds provided by the Lessee for such purpose), to file
financing statements with respect to the Security Assets under this Security
Agreement without the signature of the Borrower or the Lessee, as applicable,
in such form and in such filing offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this Security
Agreement. A carbon, photographic or other reproduction of this Security
Agreement shall be sufficient as a financing statement for filing in any
jurisdiction. For purposes of such financing statement, the Borrower or the
Lessee, as applicable, shall be deemed to be the debtor, and the Agent shall be
deemed to be the secured party. The address of the Borrower is Wachovia
Development Corporation, c/o Wachovia Securities, LLC, One Wachovia Center, 301
South College Street, Charlotte, NC 28288, Attention: Gabrielle Braverman. The
address of the Lessee is Human Genome Sciences, Inc., 9410 Key West Avenue,
Rockville, MD 20850, Attention: Steve Mayer. The address of the Agent is
Wachovia Bank, National Association, 201 South College Street (NC5708),
Charlotte, NC 28288, Attention: Greg Ponder.



	 	12.	 	Security Agreement Under Uniform Commercial Code.




		
	 	     (a) It is the intention of the parties hereto that this Security
Agreement, as it relates to matters of the grant, perfection and priority
of security interests the subject hereof, shall constitute a security
agreement within the meaning of the Uniform Commercial Code of the states
in which the Security Assets are located. If a Credit Agreement Event of
Default shall occur and be continuing, then in addition to having any
other right or remedy available at law or in equity, the Agent may
proceed under the applicable Uniform Commercial Code and exercise such
rights and remedies as may be provided to a secured party by such Uniform
Commercial Code with respect to all or any portion of the Security Assets
which is personal property (including without limitation



8






 







		
	 	taking possession of and selling such property). If the Agent shall
elect to proceed under the Uniform Commercial Code, then ten (10) days’
notice of sale of the personal property shall be deemed reasonable notice
and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by the Agent shall include, but not be
limited to, reasonable attorneys’ fees and legal expenses. At the
Agent’s request, the Borrower shall assemble such personal property and
make it available to the Agent at a place designated by the Agent which
is reasonably convenient to both parties.
	 
	 	     (b) The Borrower, upon reasonable request by the Agent from time to
time as may be necessary to protect Agent’s interest in the Security
Assets, shall execute, acknowledge and deliver to the Agent one (1) or
more separate security agreements, in form satisfactory to the Agent,
covering all or any part of the Security Assets and will further execute,
acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as the Agent may request in order to
perfect, preserve, maintain, continue or extend the security interest
under, and the priority of the Liens granted by, this Security Agreement
and such security instrument. The Borrower further agrees to pay to the
Agent (with funds provided by the Advances or by the Lessee for such
purpose in accordance with the terms of the Operative Agreements) on
demand all costs and expenses incurred by the Agent in connection with
the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches for
financing statements the Agent shall reasonably require. The filing of
any financing or continuation statements in the records relating to
personal property or chattels shall not be construed as in any way
impairing the right of the Agent to proceed against any property
encumbered by this Security Agreement.




	 	13.	 	Authority of the Agent.



     The Borrower acknowledges that the rights and responsibilities of the
Agent under this Security Agreement with respect to any action taken by the
Agent or the exercise or non-exercise by the Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Security Agreement shall be governed by the Credit
Agreements, Section 8.6 of the Participation Agreement, intercreditor
agreements among the Secured Parties and by such other agreements with respect
thereto as may exist from time to time (until such time as all amounts due and
owing to the Secured Parties and the Agent under the Operative Agreements have
been paid in full), but the Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and the Borrower shall be under no obligation, or
entitlement, to make any inquiry respecting such authority.



	 	14.	 	Notices.



     All notices required or permitted to be given under this Security
Agreement shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.


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	 	15.	 	Severability.



     Any provision of this Security Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.



	 	16.	 	Amendment in Writing; No Waivers; Cumulative Remedies.




		
	 	     (a) None of the terms or provisions of this Security Agreement may
be waived, amended, supplemented or otherwise modified except in
accordance with the terms of Section 12.4 of the Participation Agreement
and any intercreditor agreements among the Secured Parties.
	 
	 	     (b) No failure to exercise, nor any delay in exercising, on the part
of the Agent, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. A waiver by the
Agent of any right or remedy hereunder on any one (1) occasion shall not
be construed as a bar to any right or remedy which the Agent would
otherwise have on any future occasion.
	 
	 	     (c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.




	 	17.	 	Section Headings.



     The section headings used in this Security Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken
into consideration in the interpretation hereof.



	 	18.	 	Successors and Assigns.



     This Security Agreement shall be binding upon the successors of the
Borrower, and the Borrower shall not assign any of its rights or obligations
hereunder or with respect to any of the Security Assets without the prior
written consent of the Agent. This Security Agreement shall inure to the
benefit of the Secured Parties and their respective successors and assigns, in
accordance with their respective interests herein.



	 	19.	 	The Borrower’s Waiver of Rights.



     Except as otherwise set forth herein, to the fullest extent permitted by
law, the Borrower waives the benefit of all laws now existing or that may
subsequently be enacted providing for (a) any appraisement before sale of any
portion of the Security Assets, (b) any extension of the time for the
enforcement of the collection of the indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (c)
exemption of any


10






 


portion of the Security Assets from attachment, levy or sale under execution or
exemption from civil process. Except as otherwise set forth herein, to the
fullest extent the Borrower may do so, the Borrower agrees that the Borrower
will not at any time insist upon, plead, claim or take the benefit or advantage
of any law now or hereafter in force providing for any appraisement, valuation,
stay, exemption, extension or redemption, or requiring foreclosure of this
Security Agreement before exercising any other remedy granted hereunder and the
Borrower, for the Borrower and its successors and assigns, and for any and all
Persons ever claiming any interest in the Security Assets, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshalling in the event of
foreclosure of the Liens hereby created.



	 	20.	 	GOVERNING LAW.



     EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 12(a) HEREOF, THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW),
EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED ARE
REQUIRED TO APPLY.



	 	21.	 	Obligations Are Without Recourse.



     The provisions of the Participation Agreement relating to limitations on
liability are hereby incorporated by reference herein, mutatis mutandis.



	 	22.	 	Partial Release; Full Release.



     The Agent may (subject to the applicable provisions of the Operative
Agreements) release for such consideration as it may require any portion of the
Security Assets without (as to the remainder of the Security Assets) in any way
impairing or affecting the Lien, security interest and priority herein provided
for the Agent compared to any other Lien holder or secured party. Further, the
Agent shall execute and deliver to the Borrower such documents and instruments
as may be required to release the Lien and security interest created by this
Security Agreement with respect to the Property as provided in Section 8.8 of
the Participation Agreement or to grant the easements and permit the other
matters provided for in Section 8.5 of the Participation Agreement.



	 	23.	 	Miscellaneous.




		
	 	     (a) This Security Agreement is one (1) of the documents which create
Liens and security interests that secure payment and performance of the
Obligations. The Agent, at its election, may commence or consolidate in
a single action all proceedings to realize upon all such Liens and
security interests. The Borrower hereby waives (i) any objections to the
commencement or continuation of an action to foreclose the Lien of this
Security Agreement or exercise of any other remedies hereunder based on
any action



11






 







		
	 	being prosecuted or any judgment entered with respect to the Obligations
or any Liens or security interests that secure payment and performance of
the Obligations and (ii) any objections to the commencement of,
continuation of, or entry of a judgment in any such other action based on
any action or judgment connected to this Security Agreement. In case of
a foreclosure sale, the Security Assets may be sold, at the Agent’s
election, in one (1) parcel or in more than one (1) parcel and the Agent
is specifically empowered (without being required to do so, and in its
sole and absolute discretion) to cause successive sales of portions of
the Security Assets to be held.
	 
	 	     (b) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.




	 	24.	 	Conflicts with Participation Agreement.



     Notwithstanding any other provision hereof, in the event of any conflict
between the terms of this Security Agreement and the Participation Agreement,
the terms of the Participation Agreement shall govern.



	 	25.	 	THE LESSEE AS A PARTY.



     THE LESSEE HAS EXECUTED THIS SECURITY AGREEMENT FOR THE PURPOSES OF
SECTIONS 3 AND 11 HEREOF AND FOR THE PURPOSE OF SUBJECTING TO THE SECURITY
INTEREST AND LIEN GRANTED HEREUNDER IN FAVOR OF THE AGENT FOR THE BENEFIT OF
THE SECURED PARTIES ALL OF THE RIGHT, TITLE AND INTEREST OF THE LESSEE, IF ANY,
IN AND TO THE SECURITY ASSETS TO SECURE THE PROMPT PAYMENT IN FULL OF ALL
AMOUNTS OWING BY THE LESSEE FROM TIME TO TIME AND THE PERFORMANCE OF ALL
OBLIGATIONS OF THE LESSEE FROM TIME TO TIME UNDER THE OPERATIVE AGREEMENTS. TO
EFFECT THE FOREGOING, LESSEE HEREBY GRANTS TO THE AGENT (FOR THE BENEFIT OF THE
SECURED PARTIES) A SECURITY INTEREST IN AND TO ALL OF THE RIGHT, TITLE AND
INTEREST OF THE LESSEE, IF ANY, IN AND TO THE SECURITY ASSETS (TO THE EXTENT
LESSEE, RATHER THAN THE BORROWER, IS DETERMINED TO HAVE ANY RIGHT, TITLE OR
INTEREST THEREIN AND WITHOUT REGARD TO ANY LANGUAGE IN SECTION 2 OR THE
DEFINITION OF “SECURITY ASSETS” OR ANY DEFINITION OF ANY ITEM CONSTITUTING THE
SECURITY ASSETS WHICH OTHERWISE WOULD LIMIT THE SECURITY ASSETS TO THE RIGHT,
TITLE AND INTEREST OF THE BORROWER THEREIN), TO SECURE THE PROMPT PAYMENT IN
FULL OF ALL AMOUNTS OWING BY THE LESSEE FROM TIME TO TIME AND THE PERFORMANCE
OF ALL OBLIGATIONS OF THE LESSEE UNDER THE OPERATIVE AGREEMENTS. THE LESSEE
ACKNOWLEDGES AND AGREES THAT, UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE
EVENT OF DEFAULT, THE AGENT SHALL HAVE THE RIGHT TO EXERCISE ANY OR ALL OF ITS
RIGHTS AND REMEDIES HEREUNDER AS AGAINST ANY SUCH RIGHT, TITLE OR INTEREST OF
THE LESSEE IN OR TO THE SECURITY ASSETS.


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	 	26.	 	Counterparts.



     This Security Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together, shall
constitute one instrument.



	 	27.	 	Amendment and Restatement.



     The parties hereto hereby agree to amend and restate the Original Security
Agreement (in regard to the Property) pursuant to the terms of this Security
Agreement.


[signature page follows]




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     IN WITNESS WHEREOF, each of the undersigned has caused the Security
Agreement to be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	 	WACHOVIA DEVELOPMENT CORPORATION, as the

Borrower
	 	 	 	 	 
	 	 	
By:
	 	/s/ Evander S. Jones, Jr.
	 	 	


	 	 	
Name:
	 	     Evander S. Jones, Jr.
	 	 	
Title:
	 	     Vice President
	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL
 ASSOCIATION, as the
Agent for the Secured
 Parties
	 	 	 	 	 
	 	 	
By:
	 	/s/ Weston R. Garrett
	 	 	


	 	 	
Name:
	 	     Weston R. Garrett
	 	 	
Title:
	 	     Vice President




	 	 	 
	Accepted and Agreed to:
	 	 	 
	HUMAN GENOME SCIENCES, INC.
	 	 	 
	By:	
/s/ Steven C. Mayer



	Name:	 	
    Steven C. Mayer

	Title:	 	
    Senior Vice President and
	 	 	
    Chief Financial Officer





Amended and Restated Security
Agreement
Human Genome Sciences, Inc.