exv10w6



 



Exhibit 10.6


AMENDED AND RESTATED

ASSIGNMENT OF LIQUID COLLATERAL AGREEMENT


     THIS AMENDED AND RESTATED ASSIGNMENT OF LIQUID COLLATERAL ACCOUNT (as
amended, modified, extended, supplemented and/or restated from time to time,
the “Assignment”) is made as of June 30, 2003, by HUMAN GENOME SCIENCES, INC.,
a Delaware corporation (the “Pledgor”), to WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association, as agent for the Secured Parties (the “Agent”).
Capitalized terms used herein but not otherwise defined shall have the
meanings provided in the Participation Agreement (hereinafter defined). All
terms which are defined in this Assignment are subject to the rules of usage of
such terms set forth in Appendix A to the Participation Agreement.


RECITALS



     1.     The Pledgor is a party to the First Union Liquid Collateral Agreement
dated as of November 7, 2001 (as amended, modified, extended, supplemented
and/or restated from time to time, the “Original Assignment of Liquid
Collateral”) among the Pledgor, Genome Statutory Trust 2001A and Wachovia Bank,
National Association (as successor to First Union National Bank).


     2.     The Pledgor is a party 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, the “Participation Agreement”)
among the Pledgor, Wachovia Development Corporation, Variable Funding Capital
Corporation, the various banks and other financial institutions which are
parties thereto from time to time as investors, Wachovia Securities, LLC and
Wachovia Bank National Association.


     3.     A lease financing facility has been extended in favor of the Pledgor
pursuant to the Participation Agreement and the other Operative Agreements.


     4.     The Secured Parties have required the Pledgor, and the Pledgor has
agreed, to execute this Assignment in favor of the Agent with respect to
various deposits of Liquid Collateral by the Pledgor.


     5.     The parties hereto wish to amend and restate the Original Assignment of
Liquid Collateral, as it relates to the Property, pursuant to the terms of this
Assignment.


     NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 






 


ARTICLE I



Creation of Security Interest



     Section 1.1     To secure the prompt payment and performance in full when and
as due, whether by lapse of time or otherwise, of the Obligations of the
Pledgor, the Pledgor hereby assigns, mortgages, conveys, pledges, hypothecates
and delivers to the Agent, for the benefit of the Secured Parties, and hereby
grants to the Agent, for the benefit of the Secured Parties, a security
interest in, all right, title and interest of the Pledgor in and to:



		
	 	     (a)     Account
number          maintained by the Intermediary in the
name of the Pledgor or for the benefit of the Pledgor, and all successor
and replacement accounts, regardless of the numbers of such accounts or
the offices at which such accounts are maintained (collectively, any or
all of the foregoing may be referred to herein as the “Liquid Collateral
Account”) and all rights of the Pledgor in connection with the Liquid
Collateral Account, and all investment property, security entitlements,
financial assets, certificated securities, uncertificated securities
(including mutual funds shares), money, cash, currency, deposit accounts,
instruments, general intangibles, and all other investments or property
of any sort now or hereafter held, maintained or administered in the
Liquid Collateral Account in the name of or for the benefit of the
Pledgor.
	 
	 	     (b)     All rollovers, renewals or reinvestments of any of the foregoing
property.
	 
	 	     (c)     All stock or conversion rights, rights to subscribe, liquidation
dividends or preferences, stock dividends, dividends, rights to interest,
interest payments, dividends paid in stock, rights under hedge or
derivative transactions, equity swaps, caps, floors or collars, new
securities or other property which the Pledgor is or may hereafter become
entitled to receive on account of or related to any of the foregoing
property.
	 
	 	     (d)     The proceeds (including, without limitation, insurance proceeds
from the Federal Deposit Insurance Corporation, the Federal Savings and
Loan Insurance Corporation or the Securities Investor Protection
Corporation or any other insurance company), increase and products of any
of the foregoing or replacements thereof or substitutions therefor (any
and all of the foregoing items set forth in this Section 1.1(a)-(d) and
all proceeds thereof being hereinafter referred to as the “Liquid
Collateral”).



     Section 1.2     The Pledgor will execute and deliver to the Agent,
concurrently with the execution of this Assignment, and at any time or times
hereafter at the request of the Agent, all assignments, conveyances, assignment
statements, financing statements, renewal financing statements, security
agreements, affidavits, notices and all other agreements, instruments and
documents that the Agent may reasonably request, and will execute all necessary
endorsements in order to perfect and maintain the security interests and liens
granted herein by the Pledgor to the Agent and in order to fully consummate all
of the transactions contemplated herein and under the Operative Agreements. In
addition, the Pledgor represents and warrants that its name is as set forth on
the signature page hereto and that the location of the Pledgor for purposes of
the


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Uniform Commercial Code is the State of Delaware. The Pledgor covenants to
provide written notice to the Agent prior to the date of changing its name
and/or the location of the Pledgor for purposes of the Uniform Commercial Code.
In addition, the Pledgor authorizes the Agent to file Uniform Commercial Code
financing statements and renewal financing statements without the Pledgor’s
signature as the Agent may reasonably deem necessary to perfect and maintain
the security interests granted herein. In furtherance of the foregoing, the
Pledgor hereby appoints the Agent as its attorney-in-fact for the purpose of
making and executing any of the foregoing endorsements and making and filing
any such financing statements, and executing or filing documents and
agreements. The foregoing power of attorney is a power coupled with an
interest and shall be irrevocable until payment and performance in full of the
Obligations of the Pledgor.


ARTICLE II



Priority of Security Interests



     Section 2.1     The Pledgor warrants, represents and covenants that the pledge
and security interest created in Section 1.1 hereof is a first-priority
security interest in favor of the Agent, for the benefit of the Secured
Parties, and shall constitute at all times a valid and perfected security
interest in and upon all of the Liquid Collateral and that said security
interest in the Liquid Collateral shall not become subordinate or junior to the
security interests, liens or claims of any other person, firm or corporation,
including without limitation the United States or any department, agency or
instrumentality thereof, or any state, county or local governmental agency.
The Pledgor shall not (without the prior written approval of the Agent, acting
upon the direction of the Majority Secured Parties) grant a security interest
in or permit a lien or encumbrance upon the Liquid Collateral to anyone except
the Agent as long as all or any portion of the Obligations of the Pledgor
remain unsatisfied.


ARTICLE III



Default



     Section 3.1     An event of default shall exist under the terms of this
Assignment upon the existence of a Lease Event of Default, an Agency Agreement
Event of Default, a Punch List Liquid Collateral Agreement Event of Default or
any other Event of Default attributable to the Pledgor (each such occurrence
may be referred to herein as a “Liquid Collateral Agreement Event of Default”).


     Section 3.2     Upon the occurrence of a Liquid Collateral Agreement Event of
Default and during the continuation thereof, the Agent, for and on behalf of
the Secured Parties, shall have, in respect of the Liquid Collateral, (a) the
right, immediately and without further action by the Agent, to set off against
the outstanding Obligations of the Pledgor all amounts then due and payable in
the Liquid Collateral Account, (b) all the rights and remedies contained in
this Assignment, the Operative Agreements or permitted by law and (c) all the
rights and remedies of a secured party under the Uniform Commercial Code, all
of which shall be cumulative to the


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extent permitted by law. Exercise by the
Agent of the remedies contained herein shall not limit or affect any other
remedies available to the Agent.


     Section 3.3     If at any time or times hereafter the Agent employs counsel to
prepare or consider waivers or consents or to intervene, file a petition,
answer, motion or other pleading in any suit or proceeding related to this
Assignment or the other Operative Agreements, or relating to any Liquid
Collateral, or to protect, take possession of, or liquidate any Liquid
Collateral, or to attempt to enforce any security interest or lien in any
Liquid Collateral, or to enforce any rights of the Agent, then in any of such
events, all of the reasonable attorneys’ fees arising from such services, and
any expenses, costs and charges relating thereto, shall become a part of the
Obligations of the Pledgor secured by the Liquid Collateral and payable on
demand.


     Section 3.4     The Agent’s failure at any time or times hereafter to require
strict performance by the Pledgor of any of the provisions, warranties, terms
and conditions contained in this Assignment shall not waive, affect or diminish
any right of the Agent at any time or times hereafter to demand strict
performance therewith and with respect to any other provisions, warranties,
terms and conditions contained in this Assignment.


ARTICLE IV



Access/Release of Liquid Collateral



     Section 4.1     Although the Liquid Collateral Account will be maintained in
the name of the Pledgor, the Pledgor shall not have access thereto or to any of
the funds or other Liquid Collateral therein, and the Agent shall have
exclusive control and authority over the Liquid Collateral Account and all such
funds and other Liquid Collateral therein except as expressly provided in
Article V.


ARTICLE V



Initial Investment and Replenishment of the Liquid Collateral Account;

Investment Parameters for Liquid Collateral



     Section 5.1     As of the date of this Assignment, the Pledgor shall pledge to
the Agent as security for the Obligations of the Pledgor by delivery to the
Intermediary for deposit (and shall request the Intermediary to so deposit)
into the Liquid Collateral Account, Liquid Collateral in an amount as specified
in Section 5.11(a) of the Participation Agreement.


     After the date of this Assignment, the Pledgor shall comply in all
respects with the provisions of Section 5.11 of the Participation Agreement,
including without limitation those regarding (a) the pledging of additional
Liquid Collateral from time to time, (b) the scheduled reporting regarding the
Liquid Collateral and (c) each of the other matters as described in Section
5.11 of the Participation Agreement.


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     Section 5.2     Except upon the occurrence of a Liquid Collateral Agreement
Event of Default and during the continuation thereof, the Agent shall consult
from time to time with the Pledgor regarding the investment of all amounts in
the Liquid Collateral Account and shall invest such amounts as the Pledgor or
its designated representative may request in writing from time to time;
provided, upon the occurrence and during the continuation of a Liquid
Collateral Agreement Event of Default, the Agent shall make all determinations
regarding the investment and reinvestment of amounts in the Liquid Collateral
Account; provided, further, that all such amounts shall be invested at all
times in Permitted Investments.


ARTICLE VI



Miscellaneous



     Section 6.1     THIS ASSIGNMENT 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 ACCOUNT IS
LOCATED ARE REQUIRED TO APPLY.


     Section 6.2     This Assignment shall be binding upon and inure to the benefit
of the Pledgor, the Agent and their respective successors and assigns permitted
in accordance with the provisions of this Assignment and the other Operative
Agreements.


     Section 6.3     This Assignment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary
in making proof of this Assignment to produce or account for more than one such
counterpart.


     Section 6.4     If any provision of this Assignment is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions hereof shall remain in full force and effect and shall
be construed without giving effect to the illegal, invalid or unenforceable
provision.


     Section 6.5     The parties hereto hereby agree to amend and restate the
Original Assignment of Liquid Collateral, as it relates to the Property,
pursuant to this Assignment.


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     The Pledgor has caused a counterpart of this Assignment to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	 	HUMAN GENOME SCIENCES, INC., as the

Pledgor
	 	 	 	 	 
	 	 	
By:
	/s/ Steven C. Mayer
	 	 	

	 	 	
Name:
	 	Steven C. Mayer
	 	 	
Title:
	 	Senior Vice President and
	 	 	 	 	Chief Financial Officer




Accepted and agreed as of the date

first above written.



WACHOVIA BANK, NATIONAL

ASSOCIATION, as the Agent



	 	 	 
	By:	
/s/ Weston R. Garrett
	 	


	Name:	 	
Weston R. Garrett
	Title:	 	
Vice President



Amended and Restated Assignment of Liquid Collateral Account
Human Genome Sciences, Inc.