exv10w1



 



Exhibit 10.1


 OMNIBUS AGREEMENT



     THIS OMNIBUS AGREEMENT (this “Agreement”) dated as of June 26, 2003 (the
“Effective Date”), is made among MARYLAND ECONOMIC DEVELOPMENT CORPORATION, a
body politic and corporate and public instrumentality of the State of Maryland
(the “Issuer”); WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner Trustee under that certain Trust
Agreement dated as of October 25, 2001 (the “Owner Trustee”); VAL T. ORTON, not
in his individual capacity, but solely as Maryland Trustee appointed pursuant
to that certain Trust Agreement dated as of October 25, 2001 (the “Maryland
Trustee”); HUMAN GENOME SCIENCES, INC., a Delaware corporation, acting in its
capacity as Lessee (the “Lessee”); HUMAN GENOME SCIENCES, INC., a Delaware
corporation, acting in its capacity as Guarantor (the “Guarantor”); HUMAN
GENOME SCIENCES, INC., a Delaware corporation, acting in its capacity as
Pledgor (the “Pledgor”); ALLFIRST BANK, a Maryland banking corporation, and a
division of M&T BANK, acting in its capacity as Agent for the benefit of the
Participants (the “Agent”); ALLFIRST BANK, a Maryland banking corporation, and
a division of M&T BANK, acting in its capacity as Certificate Holder (the
“Certificate Holder”); ALLFIRST BANK, a Maryland banking corporation, and a
division of M&T BANK, as Credit Facility Provider (the, “Credit Facility
Provider”); M&T BANK, a division of MANUFACTURERS AND TRADERS TRUST COMPANY
(successor in interest to ALLFIRST TRUST COMPANY NATIONAL ASSOCIATION), acting
in its capacity as Bond Trustee (the “Bond Trustee”); M&T BANK, a division of
MANUFACTURERS AND TRADERS TRUST COMPANY (successor in interest to ALLFIRST
TRUST COMPANY NATIONAL ASSOCIATION), acting in its capacity as Collateral Agent
(the “Collateral Agent”); and JOSEPH C. LEMENSE and GARTH C. HARDING, acting in
their capacity as Individual Trustees (the “Individual Trustees”). This
Agreement is accepted and approved by ALLFIRST BANK, a Maryland banking
corporation, and a division of M&T BANK, acting in its capacity as Remarketing
Agent (the “Remarketing Agent”) under that certain Placement and Remarketing
Agreement by and between the Issuer and the Remarketing Agent dated as of
October 25, 2001.


 RECITALS



     A.     The Issuer and the Maryland Trustee are parties to that certain Lease
dated as of October 25, 2001 (as amended or supplemented from time to time, the
“Head Lease”), pursuant to which the Issuer leased the property more
particularly described in the Head Lease (the “Property”) to the Maryland
Trustee, and the Maryland Trustee leased the Property from the Issuer, as
further evidenced by the execution and recordation of that certain Memorandum
of Lease in the Land Records of Montgomery County, Maryland in Liber 19884 at
Folio 674 (the “Memorandum of Head Lease”).


     B.     The Owner Trustee and the Lessee are parties to that certain Lease
Agreement dated as of October 25, 2001 (as amended or supplemented from time to
time, the “Facility Lease”), pursuant to which the Owner Trustee, acting
through the Maryland Trustee, subleased the Property to the Lessee, and the
Lessee subleased the Property from the Owner Trustee, acting through the
Maryland Trustee, as evidenced by the execution and recordation of that certain
Montgomery County, Maryland Lease Supplement, Short Form/Memorandum of Lease
and


 






 


Remedies in the Land Records of Montgomery County, Maryland in Liber 19884 at
Folio 681 (the “Lease Supplement”).


     C.     The Owner Trustee and the Certificate Holder are parties to that
certain Trust Agreement dated as of October 25, 2001 (as amended or
supplemented from time to time, the “Trust Agreement”), pursuant to which the
Owner Trustee and the Certificate Holder established the HGSI Trust 2001-B (the
“Trust”) for the purposes of (i) providing refinancing for a portion of the
costs incurred by the Issuer in connection with the acquisition of the
Property, (ii) providing financing for a portion of the costs attributable to
the construction of the Additional Improvements (as defined in the Facility
Lease), (iii) acquiring a leasehold interest in the Property from the Issuer
and (iv) holding title to the Owner Trust Estate (as defined in the Trust
Agreement), and, simultaneously therewith, pursuant to that certain Maryland
Trustee Appointment dated as of October 25, 2001 (the “Maryland Trustee
Appointment”), the Owner Trustee appointed the Maryland Trustee to serve as
trustee for that portion of the Owner Trust Estate located from time to time in
the State of Maryland.


     D.     Pursuant to the Trust Agreement, and in furtherance of the purposes set
forth therein, the Owner Trustee issued that certain Certificate dated as of
October 25, 2001, in the principal amount of $3,000,000 (the “Certificate”) to
the Certificate Holder, and, using the proceeds from the Certificate, the Owner
Trustee made a loan to the Issuer in the principal amount of $3,000,000, as
evidenced by that certain Promissory Note and Security Agreement dated as of
October 25, 2001, made by the Issuer in favor of the Owner Trustee (the “MEDCO
Note”).


     E.     The Issuer and the Bond Trustee are parties to that certain Trust
Indenture dated as of October 25, 2001 (as amended or supplemented from time to
time, the “Trust Indenture”), pursuant to which the Issuer, in accordance with
Article 83A, Title 5, Subtitle 2 of the Annotated Code of Maryland (as amended
or supplemented from time to time, the “Act”), issued and sold its Taxable
Variable Rate Demand Revenue Bonds (Human Genome Sciences, Inc. Facility),
Series 2001A, in the aggregate principal amount of $73,000,000 (the “Bonds”)
for the sole and exclusive purposes of (i) refinancing the remaining portion of
the costs incurred by the Issuer in connection with the acquisition of the
Property and (ii) financing the remaining portion of the costs attributable to
the construction of the Additional Improvements.


     F.     In order to enhance the marketability of the Bonds, the Credit Facility
Provider, at the request of the Issuer, issued to the Bond Trustee that certain
Letter of Credit dated as of October 25, 2001, in the initial stated amount of
$74,080,000 (as amended or supplemented from time to time, the “Letter of
Credit”), and, in connection with the issuance of the Letter of Credit, the
Issuer and the Credit Facility Provider entered into that certain Letter of
Credit Agreement dated as of October 25, 2001 (as amended or supplemented from
time to time, the “Letter of Credit Agreement”), pursuant to which the Issuer
agreed to reimburse the Credit Facility Provider for all amounts drawn under
the Letter of Credit, together with interest thereon at the Reimbursement Rate
(as defined in the Letter of Credit Agreement) and, under certain
circumstances, at the Penalty Rate (as defined in the Letter of Credit
Agreement).


     G.     In order to induce the Certificate Holder to purchase the Certificate,
the Credit Facility Provider to issue the Letter of Credit and the Hedge
Counterparty (as defined in the


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Facility Lease) to enter into a Hedge Agreement (as defined in the Facility
Lease) with the Issuer:




	 	 	(i) The Guarantor entered into that certain Guarantee dated as of October
25, 2001 (as amended or supplemented from time to time, the “Guarantee”),
pursuant to which the Guarantor irrevocably and unconditionally
guaranteed to the Agent, for the benefit of the Certificate Holder, the
Credit Facility Provider and the Hedge Counterparty, the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, and the full and prompt performance of, certain Liabilities
(as defined in the Guarantee);
	 
	 	 	(ii) The Pledgor, the Agent and the Collateral Agent entered into that
certain Cash Collateral Pledge Agreement dated as of October 25, 2001 (as
amended or supplemented from time to time, the “Pledge Agreement”),
pursuant to which the Pledgor deposited cash and marketable securities in
an account maintained by the Pledgor with the Collateral Agent and the
Pledgor granted to the Agent a security interest in the Collateral (as
defined in the Pledge Agreement) pursuant to the provisions of the
Maryland Uniform Commercial Code in order to secure the Pledgor’s
obligations under the Facility Lease and the other Operative Documents
(as defined in the Facility Lease); and
	 
	 	 	(iii) The Issuer, the Owner Trustee, the Maryland Trustee and the Lessee
(collectively, the “Grantors”) entered into that certain Deed of Trust,
Assignment of Leases, Security Agreement and Fixture Filing dated as of
October 25, 2001 and recorded in the Land Records of Montgomery County,
Maryland in Liber 19884 at Folio 695 (as amended or supplemented from
time to time, the “Deed of Trust”), pursuant to which the Grantors
granted a deed of trust lien and security interest in certain Security
Property to Joseph C. LeMense and J. Scott Ensor, as Trustees for the
benefit of the Agent, to secure the Secured Obligations (as defined in
the Deed of Trust), all as more particularly set forth in the Deed of
Trust.



     H.     Pursuant to a Deed of Appointment of Substitute Trustee, the Agent has
appointed Garth C. Harding to serve as a substitute trustee under the Deed of
Trust for J. Scott Ensor.


     I.     Subject to the terms and conditions hereinafter set forth in this
Agreement, the parties hereto have agreed that, as of the Effective Date, (i)
the Head Lease and the Memorandum of Head Lease, respectively, shall be
terminated, (ii) the Owner Trustee and the Maryland Trustee, respectively,
shall assign all of their right, title and interest in and to the Facility
Lease and the Lease Supplement, respectively, to the Issuer, (iii) the Owner
Trustee shall assign the MEDCO Note to the Certificate Holder in full
satisfaction of the obligations of the Trust under the Certificate, (iv) the
Trust shall be terminated and released from all of its obligations under the
Operative Documents, and (v) the Operative Documents shall be amended to
reflect the foregoing.


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AGREEMENT



     NOW, THEREFORE, for the specific consideration hereinafter set forth in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


     1.     Capitalized Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned thereto in the Deed of Trust.


     2.     Assignment of Facility Lease and Lease Supplement. For and in
consideration of the termination of the Head Lease and the Memorandum of Head
Lease and the release by the Issuer of the Lessor Parties (as hereinafter
defined) from any and all liability thereunder from and after the Effective
Date as set forth in Paragraph 3 below, the Owner Trustee and the Maryland
Trustee, respectively, hereby transfer, grant, assign and convey, all of their
respective rights, title and interests under the Facility Lease and the Lease
Supplement, including, without limitation, the leasehold interest in the
Property created thereby, to the Issuer, and the Issuer hereby accepts the
assignment of the Facility Lease and the Lease Supplement and assumes any and
all liability thereunder arising from and after the Effective Date, subject,
however, to the provisions of Section 22 hereof.


     3.     Termination of Head Lease and Memorandum of Head Lease. For and in
consideration of the assignment of the Facility Lease and Lease Supplement set
forth in Paragraph 2 above, as of the Effective Date, the Head Lease and the
Memorandum of Head Lease are hereby terminated and the Maryland Trustee, the
Owner Trustee and the Trust and their respective successors and assigns
(collectively, the “Lessor Parties”), are forever released and discharged from
any and all liability arising thereunder from and after the Effective Date. As
to the period prior to the Effective Date, the parties hereto acknowledge and
agree that, to the best of their knowledge, there are no outstanding
liabilities of the Lessor Parties under the Head Lease and the Memorandum of
Head Lease.


     4.     No Merger. There shall be no merger of the Facility Lease or of the
leasehold estate created thereby or of the Lessor’s interest thereunder created
by reason of the fact that the same Person may acquire, own or hold, directly
or indirectly, in whole or in part, (a) any interest in the Facility Lease or
the leasehold estate created thereby or (b) title to or any other interest in
the Property or any part thereof.


     5.     Attornment by Lessee to Issuer. The Lessee hereby acknowledges the
transfer and assignment by the Owner Trustee and the Maryland Trustee,
respectively, of all of their respective rights, title and interests under the
Facility Lease and the Lease Supplement to the Issuer, and, in connection
therewith, from and after the Effective Date, the Lessee hereby covenants and
agrees to attorn to and recognize the Issuer as the Lessor under the Facility
Lease and the Lease Supplement for the remainder of the Term (as defined in the
Facility Lease), and the parties hereto acknowledge and agree that the Facility
Lease and the Lease Supplement shall not terminate but shall continue in full
force and effect as a direct lease between the Issuer and the Lessee.


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     6.     Status of Facility Lease and Lease Supplement. The Lessee and the
Guarantor each
represent and warrant to the other parties hereto, to the best of their
respective knowledge, as follows: (i) the Facility Lease, the Lease Supplement
and the other Operative Documents are in full force and effect; (ii) none of
the parties to the Facility Lease, the Lease Supplement and the other Operative
Documents are currently in default under any of the terms thereof, and no event
has occurred which would, with the giving of notice or the lapse of time, or
both, constitute a default under the Facility Lease and the Lease Supplement or
any of the other Operative Documents; and (iii) the Lessee is the current
tenant in possession under the Facility Lease and the Lease Supplement and
there are no third parties entitled to possession of all or any portion of the
Property pursuant to any subleases. The Owner Trustee and the Maryland Trustee
each represent and warrant to the other parties hereto that, except for the
prior assignment to the Agent pursuant to the Deed of Trust, neither the Owner
Trustee nor the Maryland Trustee have previously assigned their respective
rights, title and interests under the Facility Lease and the Lease Supplement
to any third party.


     7.     Assignment of MEDCO Note to Certificate Holder and Cancellation of
Certificates Replacement MEDCO Note. In full satisfaction of all of the
obligations of the Trust to the Certificate Holder, as evidenced by the
Certificate, the Owner Trustee hereby irrevocably assigns and transfers the
MEDCO Note to the Certificate Holder, and the Certificate Holder hereby accepts
the MEDCO Note and releases the Trust from any and all further liability under
the Certificate. In furtherance of the foregoing, on the Effective Date, the
Owner Trustee shall endorse the MEDCO Note to evidence the assignment and
transfer thereof to the Certificate Holder and shall deliver the original MEDCO
Note to the Certificate Holder, and, simultaneously therewith, the Certificate
Holder shall surrender the Certificate to the Owner Trustee for cancellation.
Simultaneously with the endorsement of the MEDCO Note by the Owner Trustee and
the delivery of the original MEDCO Note by the Owner Trustee to the Certificate
Holder, the original MEDCO Note shall be marked cancelled by the Certificate
Holder, and the Issuer shall execute an Amended and Restated Promissory Note in
favor of the Certificate Holder (the “Amended and Restated MEDCO Note”).


     8.     Termination of Trust. As of the Effective Date, (i) the Trust Agreement
and the Maryland Trustee Appointment are hereby terminated, (ii) the Trust is
hereby dissolved and (iii) the Owner Trust Estate, if applicable, is hereby
distributed to the Certificate Holder. In connection with the foregoing, as of
the Effective Date, all parties hereto release the Owner Trustee, the Maryland
Trustee and Trust from all liabilities under and with respect to the Trust
Agreement, the Maryland Trustee Appointment, the Certificate and the Operative
Documents.


     9.     Modifications to Operative Documents. As of the Effective Date, the
Operative Documents are hereby amended as follows:


     (a)  All references in the Operative Documents to the Head Lease, the Trust
Agreement, the Certificates, the Certificate Holder, the Trust, the Owner
Trustee and the Maryland Trustee are hereby deleted.


     (b)  All references in the Operative Documents to the MEDCO Note shall be
deemed to refer to the Amended and Restated MEDCO Note.


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     (c)  The Facility Lease is hereby amended as follows:



		
	 	          (A) Notwithstanding anything
contained in the Facility Lease
or any of the other Operative Documents to the contrary, as of the
Effective Date, the Facility Lease shall be a direct lease of the
Property by Lessor to Lessee and not a sublease.
	 
	 	          (B) Paragraph 1 is hereby amended and restated in its
entirety
as follows:
	 
	 	     “1. Demise of Property. In consideration of the rents and
covenants herein stipulated to be paid and performed, Lessor hereby
demises and leases to Lessee, and Lessee hereby demises and lets
from Lessor, the Property.”
	 
	 	          (C) The definition of Break Costs in Paragraph 2 is
hereby
amended and restated in its entirety as follows:
	 
	 	     “Break Costs means an amount equal to the amount, if any,
required to compensate any holder of the MEDCO Note or any Credit
Facility Provider for any additional losses (including, without
limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or funds acquired by any
holder of the MEDCO Note or any Credit Facility Provider to fund
its obligations under the Operative Documents) it may incur as a
result of (a) Lessee’s payment of Basic Rent other than on a
Payment Date or (b) as a result of any conversion of the LIBO Rate
other than on the last day of an Interest Period pursuant to and in
accordance with the Operative Documents. A statement as the amount
thereof, prepared in good faith and in reasonable detail and
submitted by any holder of the MEDCO Note or any Credit Facility
Provider, as the case may be, to Lessee, shall be presumed correct
absent demonstrable error.”
	 
	 	          (D) All references to the
Head Lessor’s Fee and Holder Yield
are hereby deleted.
	 
	 	          (E) The definition of Lease Balance in Paragraph 2 is
hereby
amended and restated in its entirety as follows:
	 
	 	     “Lease Balance means, with respect to the Property, as of any
date of determination, an amount equal to the aggregate sum of (i)
the outstanding principal amount of the Bonds, including all
accrued and unpaid interest thereon, (ii) the outstanding principal
amount of the MEDCO Note, including all accrued
and unpaid interest thereon, (iii) amounts due to the Hedge
Counterparty under the Hedge Documents and the Collateral Pledge
Agreement, and (iv) any other amounts due and owing under the
Operative Documents, including, without limitation, all amounts
owed to the Credit Facility Providers under the Credit Facility
Documents (provided, however, that if the Lessee exercises its
option to purchase the Property on the Expiration Date, all amounts
owed under the Credit
Facility Documents through and including the expiration of the
Credit Facility Documents shall also be included within this
calculation).”



6






 







		
	 	          (F) The definition of Lessee’s Equipment in Paragraph 2
is
hereby amended and restated in its entirety as follows:
	 
	 	     “Lessee’s Equipment means Lessee’s machinery, apparatus,
furnishings and other equipment that is (i) not paid for or
financed, directly or indirectly, with the proceeds of the Bonds or
the MEDCO Note, (ii) not included in any requisition or in any
disbursement from the Facility Fund or any advance or extension of
credit under the MEDCO Note, (iii) not a fixture or otherwise
affixed
to any part of the Property, and (iv) not in replacement for any
property described in clauses (i) through (iii) above or for any of
the other Building Equipment.”
	 
	 	          (G) The following definition
is hereby added to Paragraph 2
before the definition of the MEDCO Note:
	 
	 	     “MEDCO Fee means an annual fee payable by the Lessee to the
Issuer in the amount of $30,000.00.”
	 
	 	          (H) The definition of
Participants in Paragraph 2 is hereby
amended and restated in its entirety as follows:
	 
	 	     “Participants means the Credit Facility Providers, the holder
of the MEDCO Note and the Hedge Counterparty.”
	 
	 	          (I) All references to Subsequent Holder Advances are
hereby
deleted.
	 
	 	          (J) The following definition is hereby added to
Paragraph 2
before the definition of Subsidiary or Subsidiaries:
	 
	 	     “Subsequent MEDCO Loan Advances has the meaning given to such
term in the MEDCO Note.
	 
	 	          (K) Subparagraph (b) of Paragraph 6 is hereby amended
and
restated in its entirety as follows:
	 
	 	     “(b) Lessor and Lessee acknowledge and agree that Basic Rent
has been determined based upon a number of factors, which include
the amount of interest payable of the aggregate sum of the
outstanding principal amount of the Bonds from time to time, the
interest payable of the aggregate sum of the outstanding principal
amount of the MEDCO Note from time to time and any other amounts
and costs payable pursuant to the Operative Documents. Accordingly,
Basic Rent shall be adjusted from time to time by Lessor and Lessee
to reflect (i) any increase in the aggregate sum of the outstanding
principal amount of the Bonds and/or the MEDCO Note, (ii) any
redemption of the Bonds



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	 	prior to the maturity date, (iii) any increase or decrease in Basic
Rent as a result of the existence of the Hedge Documents, (iv) the
expiration of any Hedge or any default by any Hedge Counterparty in
the performance of its obligations under any Hedge Documents, and
(v) any additional amounts and costs that become due and owing
pursuant to the other Operative Documents.”
	 
	 	          (L) The first paragraph of subparagraph (c) of Paragraph
6 is
hereby amended and restated in its entirety as follows:
	 
	 	     “(c) Lessee covenants and agrees to pay and discharge, as
additional rent (the “Additional Rent”), all amounts, liabilities
and obligations (other than Basic Rent) which Lessee assumes or
agrees or is otherwise obligated to pay under this Lease or any
other Operative Document (whether or not designated as Additional
Rent) to Agent or any other Person, including, without limitation,
the MEDCO Fee, any costs otherwise payable by Issuer under the
Hedge Documents, Break Costs, the Residual Guaranty Amount and any
Lease Balance. The MEDCO Fee shall be payable commencing on June 1,
2002 and on each June 1 thereafter throughout the remainder of the
Term. Each payment of Additional Rent received by the Agent shall
be disbursed by the Agent in accordance with Article IX of the Deed
of Trust.”
	 
	 	          (M) Paragraph 19(a)(ii) is hereby deleted.
	 
	 	          (N) Subparagraph (a) of
Paragraph 29 is hereby amended and
restated in its entirety as follows:
	 
	 	     “(a) This Lease is subject and subordinate to the lien,
provisions, operation and effect of the Deed of Trust and other
Encumbrances now or hereafter encumbering the Property or any
interest therein, to all funds and indebtedness intended to be
secured thereby, and to all renewals, extensions, modifications,
recastings or refinancings thereof. The holder of any Encumbrance
to which this Lease is subordinate shall have the right (subject to
any required approval of the holders of any superior Encumbrance)
at any time to declare this Lease to be superior to the lien,
provisions, operation and effect of such Encumbrance, and Lessee
shall execute, acknowledge and deliver all documents required by
such holder in confirmation thereof.”
	 
	 	          (O) Subparagraph (i) of
Paragraph 36 is hereby amended and
restated in its entirety as follows:.
	 
	 	     “(i) Acceleration of MEDCO Note and Payments under the Letter
of Credit Agreement and Other Operative Documents. In case of any
sale of the Property, or of any part thereof, pursuant to any
judgment or decree of any court or otherwise in connection with the
enforcement of any of the terms of this Lease, the principal amount
of the MEDCO Note and all outstanding amounts due and owing under
the Letter of Credit Agreement and the other Operative Documents,
if not previously due, and the interest accrued thereon, if any,
shall at once



8






 







		
	 	become and be immediately due and payable. If at any foreclosure
proceeding the Property shall be sold for a sum less than the total
amount of indebtedness for which judgment is therein given, the
judgment creditor shall be entitled to the entry of a deficiency
decree against Lessee and against the property of Lessee for the
amount of such deficiency; provided, however, during the
Construction Period, the foregoing right of the judgment creditor
to a deficiency decree against Lessee and the property of Lessee
shall be subject to the limitations set forth in subparagraph (f)
of Paragraph 17 hereof.”
	 
	 	               (P) The following Paragraph 39 is hereby added
	 
	 	     “39. Limited Liability of Lessor. Anything contained herein to
the contrary notwithstanding, any claim based on or in respect of
any liability of Lessor under this Lease shall be enforced only
against Lessor’s interest in the Property (subject to the lien of
the Deed of Trust), and not against any other assets, properties or
funds of Lessor or against any assets, properties or funds of (i)
any employee or agent of Lessor (or any director, officer, legal
representative, successor, or assign of any thereof), or (ii) any
other Person affiliated with any of the foregoing, including,
without limitation, the State of Maryland or any department, agency
of instrumentality thereof.
	 
	 	     Notwithstanding any other provision to the contrary set forth
in this Lease or in any other agreement or document executed in
connection with or relating to this Lease:
	 
	 	     (a) No provision of this Lease or of any other agreement or
document executed in connection with or relating to this Lease
shall be construed so as to give rise to any monetary or pecuniary
liability of Lessor or of the State of Maryland, or any political
subdivision or agency thereof, or to give rise to a charge upon the
general credit of Lessor or of the State of Maryland, or any
political subdivision or agency thereof, and any claim based on or
in respect of any liability of Lessor under this Lease shall be
enforced only as set forth in this Paragraph 39.
	 
	 	     (b) Neither this Lease nor any other agreement or document
executed in connection with or relating to this Lease nor any claim
hereunder or thereunder shall (i) constitute a debt of Lessor or of
the State of Maryland, or any political subdivision or agency
thereof, or a pledge of the full faith and credit or taxing power
of the State of Maryland, or any political subdivision or agency
thereof, or (ii) create any monetary liability on, or obligate
Lessor or the State of Maryland, or any political subdivision or
agency thereof, to make any appropriation for payment. Lessor has
no taxing authority.
	 
	 	     (c) The liability of Lessor under this
Lease and under any other
agreement or document executed in connection with or relating to
this Lease shall be non-recourse to Lessor, limited as set forth
above in this Paragraph 39; and the lien of any judgment shall be
restricted to only Lessor’s interest in the Property



9






 








		
	 	(subject to the lien of the Deed of Trust), and not against any
other assets, properties or funds of Lessor or against any assets,
properties or funds of (i) any employee or agent of Lessor (or any
director, officer, legal representative, successor, or assign of
any thereof), or (ii) any other Person affiliated with any of the
foregoing, including, without limitation, the State of Maryland or
any department, agency or instrumentality thereof; and Lessor shall
have no other liability, legal, moral or otherwise, to Lessee, or
any other Person, in connection with the Property, this Lease, or
any other agreement or document executed in connection with or
relating to this Lease. In no event shall Lessor be required to pay
any claim under this Lease or under any other agreement or document
executed in connection with or related to this Lease from any of its
own funds.”
	 
	 	               (P) Exhibit C is hereby amended and restated in its entirety
as
follows:



“BASIC RENT




		
	 	               Subject to adjustment as provided in Paragraph 6(b) of
this Lease,
Basic Rent, on each Payment Date, shall be an amount equal to the
sum of (i) the amount of interest payable on the aggregate sum of
the outstanding principal amount of the Bonds as of such Payment
Date, (ii) the amount of interest payable on the aggregate sum of
the outstanding principal amount of the MEDCO Note as of such
Payment Date, and (iii) any other amounts and costs payable or
reimbursable pursuant to the Operative Documents as of such Payment
Date; provided, however, during the Construction Period, (a) the
interest payable on that portion of the aggregate sum of the
outstanding principal amount of the Bonds used to establish the
Facility Fund shall be treated as Facility Costs and paid by Lessee
from the Facility Fund and (b) the interest payable on that portion
of the aggregate sum of the outstanding principal amount of the
MEDCO Note used to fund Subsequent MEDCO Note Advances shall be
capitalized and added to the outstanding principal amount of the
MEDCO Note in accordance with the terms thereof.”
	 
	 	(d)          The Deed of Trust is hereby amended as follows:
	 
	 	               (A) The Owner Trustee and the Maryland Trustee are hereby
deleted as Grantors under the Deed of Trust, and the Owner Trustee,
the Maryland Trustee and the Trust established pursuant to the
Trust Agreement are forever released and discharged from any and
all liability arising thereunder.
	 
	 	               (B) The fourth paragraph of the Recitals is hereby deleted.
	 
	 	               (C) The fifth, sixth, seventh, eighth and ninth paragraphs of
the Recitals are hereby amended and restated in its entirety as
follows:
	 
	 	              “The Bank has made a loan to the Issuer in the aggregate
principal amount of up to $3,000,000.00 (the “MEDCO Loan”), as
evidenced by that certain



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	 	Promissory Note and Security Agreement of even date herewith made
by the Issuer in favor of the Bank (the “MEDCO Note”), the proceeds
of which will be used by the Issuer, together with the proceeds of
the Bonds, to refinance the costs incurred by the Issuer in
connection with the acquisition of the Property and to finance the
costs attributable to the construction of the Additional
Improvements.
	 
	 	               The Issuer and the Lessee have entered into that certain
Lease Agreement
dated of even date herewith (the “Lease”), as evidenced by that
certain Montgomery County, Maryland Lease Supplement, Short
Form/Memorandum of Lease and Remedies dated of even date herewith
(the “Lease Supplement”, and together with the Lease, the “Facility
Lease”), pursuant to which the Issuer leased to the Lessee and the
Lessee leased from the Issuer the Property, all as contemplated by
the Lease.
	 
	 	               As a condition to the issuance of the Letter of Credit, the
making of the MEDCO Loan and the consummation of the transactions
contemplated by the Hedge Documents (as defined in Section 1.1 of
this Deed of Trust), if applicable, the Beneficiary, on behalf of
the Bank and the Hedge Counterparty (as defined in Section 1.1 of
this Deed of Trust), if applicable, required (among other things)
the execution and delivery of this Deed of Trust by the Grantors.
	 
	 	               As used in this Deed of Trust, the term “Beneficiary”, whether
referred to as singular or plural, means the Agent, acting in its
capacity as Agent pursuant to the provisions of Article III hereof
for the benefit of (a) the Bank, as the issuer of the Letter of
Credit, and its respective successors and assigns, (b) any other
Credit Facility Providers (as defined in Section 1.1 of this Deed
of Trust), (c) the Bank, as holder of the MEDCO Note, and its
successors and assigns, and (d) the Hedge Counterparty
(collectively, the “Participants”).
	 
	 	               Each of the Grantors intends, by the execution and delivery of
this Deed of Trust, and in accordance with the Act, to secure the
full and punctual payment and performance by (i) the Issuer of the
Issuer’s obligations under the Bond Documents, the Letter of Credit
Documents, the MEDCO Note, the Hedge Documents, if applicable, and
the other Operative Documents, and (ii) the Lessee of the Lessee’s
obligations under the Facility Lease, the Guarantee (as defined in
Section 1.1 of this Deed of Trust), the Collateral Pledge Agreement
(as defined in Section 1.1 of this Deed of Trust) and the other
Operative Documents (collectively, the “Secured Obligations”).”
	 
	 	               (D) The definition of Certificate Holder Advance in Section
1.1 is hereby deleted.
	 
	 	               (E) The definition of Grantors is hereby amended and restated
in its entirety as follows:
	 
	 	                “Grantors means, collectively, the Issuer and the Lessee.”



11






 







		
	 	               (F) The definitions of Head Lease Additional Rent, Head Lease
Basic Rent and Holder Yield in Section 1.1 are hereby deleted.
	 
	 	               (G) The definition of Lease Balance in Section 1.1 is hereby
amended and restated in its entirety as follows:
	 
	 	               “Lease Balance means, as of any date of determination, an
amount equal to the aggregate sum of the outstanding principal
amount of the Bonds, including all accrued and unpaid interest
thereon, the outstanding principal amount of the MEDCO Note,
including all accrued and unpaid interest thereon, and any other
amounts due and owing under the Operative Documents, including,
without limitation, all amounts owed to the Credit Facility
Providers under the Credit Facility Agreements.”
	 
	 	               (H) The definition of Lessor in Section 1.1 is hereby amended
and restated in its entirety as follows:
	 
	 	               “Lessor means the Issuer.”
	 
	 	               (I) The definitions of MEDCO Loan Advance and Owner Trust
Estate in Section 1.1 are hereby deleted.
	 
	 	               (J) The definition of Subsequent Holder Advance in Section 1.1
is hereby deleted.
	 
	 	               (K) The following definition is hereby added to Section 1.1
after the definition of Security Property:
	 
	 	               “Subsequent_MEDCO Loan Advance has the meaning given to that
term in Section 8.3 of this Deed of Trust.”
	 
	 	               (L) Subparagraphs (b) and (c) of Section 4.1 are hereby
deleted.
	 
	 	               (M) Subparagraphs (a) and (b) of Section 4.5 are hereby
amended and restated in its entirety as follows:
	 
	 	               “(a) Event of Loss. Any event (i) which would otherwise
constitute a Casualty, and (ii) which, in the good faith judgment
of the Lessee, renders repair and restoration of the Property
impossible or impractical, or requires repairs to the Property that
would cost in excess of fifty percent (50%) of the original cost of
the Property, and (iii) as to which the Lessee, within sixty (60)
days after the occurrence of such event, delivers to the
Beneficiary a written notice signed by an authorized officer of the
Lessee (the “Officer’s Certificate”) notifying the Beneficiary of
such event and of such judgment, shall constitute an “Event of
Loss”. In the case of any other event which constitutes a Casualty,
the Lessee



12






 







		
	 	shall restore the Property pursuant to subparagraph (c) below. If
an Event of Loss other than an Event of Taking shall occur, the
Lessee shall pay to the Beneficiary on the later of (i) the
thirtieth day (30th) and (ii) the next Payment Date following
delivery of the Officer’s Certificate pursuant to clause (iii)
above an amount equal to the Lease Balance. Upon the Beneficiary’s
receipt of the Lease Balance on such date, the Beneficiary shall
permit the Lessor’s interest in the Property to be conveyed to the
Lessee in accordance with and subject to the provisions of
Paragraph 19(e) of the Facility Lease. Upon completion of such
purchase and payment of the Lease Balance by the Lessee to the
Beneficiary, but not prior thereto, this Deed of Trust and all
obligations hereunder shall terminate, except with respect to
obligations and liabilities hereunder, actual or contingent, that
have arisen or relate to events occurring on or prior to such date
of purchase, or which are expressly stated herein to survive
termination of this Deed of Trust.
	 
	 	               Upon the consummation of the purchase of the Property pursuant
to this subparagraph (a), any proceeds derived from insurance
required to be maintained by the Lessee pursuant to this Deed of
Trust for the Property remaining after payment of the Lease Balance
shall be paid over to, or retained by, the Lessee or as it may
direct, and the Beneficiary shall assign to the Lessee, without
warranty, all of the Beneficiary’s rights to and interest in such
insurance required to be maintained by the Lessee pursuant to this
Deed of Trust.
	 
	 	               “(b) Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, the Property, or
(ii) (A) which would otherwise constitute a Condemnation, (B)
which, in the good faith judgment of the Lessee, renders
restoration and rebuilding of the Property impossible or
impractical, or requires repairs to the Property that would cost in
excess of fifty percent (50%) of the original cost of the Property,
and (C) as to which the Lessee, within sixty (60) days after the
occurrence of such event, delivers to the Beneficiary an Officer’s
Certificate notifying the Beneficiary of such event and of such
judgment, shall constitute an “Event of Taking”. In the case of any
other event which constitutes a Condemnation, the Lessee shall
restore and rebuild the Property pursuant to subparagraph (d)
below. If an Event of Taking shall occur, the Lessee shall pay to
the Beneficiary (1) on the later of (A) the thirtieth (30th) day
and (B) the next Payment Date following the occurrence of such
Event of Taking, in the case of an Event of Taking described in
clause (i) above, or (2) on the later of (A) the thirtieth (30th)
day and (B) the next Payment Date following delivery of the
Officer’s Certificate pursuant to clause (ii) above, in the case of
an Event of Taking described in clause (ii) above, an amount equal
to the Lease Balance. Upon the Beneficiary’s receipt of the Lease
Balance on such date, the Beneficiary shall permit the Lessor’s
interest in the Property to be conveyed to the Lessee in accordance
with and subject to the provisions of Paragraph 19(e) of the
Facility Lease (provided that such conveyance shall be subject to
all rights of the condemning authority). Upon completion of such
purchase and payment of the Lease Balance by the Lessee to the
Beneficiary, but not prior thereto, this Deed of Trust and all
obligations hereunder shall terminate, except with respect to
obligations and liabilities hereunder, actual or contingent, that
have arisen or



13






 







		
	 	relate to events occurring on or prior to such date of purchase, or
which are expressly stated herein to survive termination of this
Deed of Trust.
	 
	 	               Upon the consummation of the purchase of the Property pursuant
to this subparagraph (b), all Condemnation Awards received by the
Beneficiary, after deducting any reasonable costs incurred by the
Beneficiary in collecting such Condemnation Awards, received or
payable on account of an Event of Taking with respect to the
Property shall be paid to the Lessee, and all rights of the
Beneficiary in Condemnation Awards not then received shall be
assigned to the Lessee by the Beneficiary.”
	 
	 	               (N) The first paragraph of Section 8.1 is hereby amended and
restated in its entirety as follows:
	 
	 	               “Section 8.1 Approval of Disbursements from Indenture for
Facility Costs. The Bank, as the issuer of the Letter of Credit
and as the holder of the MEDCO Note hereby appoints the Agent to
act on its behalf to approve each requisition for disbursements
from the Facility Fund and for Subsequent MEDCO Loan Advances
pursuant to the MEDCO Note. Approval of each requisition for
disbursements from the Facility Fund pursuant to Section 5.6 of the
Indenture and for Subsequent MEDCO Loan Advances pursuant to the
MEDCO Note by an authorized officer of the Agent shall be subject
to the fulfillment to the satisfaction of, or waiver by, the Agent
of the following conditions precedent:”
	 
	 	               (O) Item (1) of Section 8.1 is hereby amended and restated in
its entirety as follows:
	 
	 	               “(1) Title Endorsements. If required by the Agent, the Agent
shall have received with the submittal of the Requisition an
endorsement to the title policies issued in favor of the Agent on
the Closing Date (i) indicating that since the date of the
preceding advance from the Facility Fund and the preceding
Subsequent MEDCO Loan Advance there has been no change in the state
of title to the Property, and (ii) updating such title policy to
the date of the current advance from the Facility Fund and the
current Subsequent MEDCO Loan Advance.”
	 
	 	               (P) The first paragraph of Section 8.2 is hereby amended and
restated in its entirety as follows:
	 
	 	               “Section 8.2 Additional Requirements for Approval of Final
Disbursement from Indenture for Facility Costs. In addition to the
conditions precedent set forth in Section 8.1 above, the approval
of the final requisition for disbursements from the Facility Fund
pursuant to Section 5.6 of the Indenture and the final Subsequent
MEDCO Loan Advance pursuant to the MEDCO Note by an authorized
officer of the Agent acting on behalf of the Bank, as the issuer of
the Letter of Credit and as the holder of the MEDCO Note, shall be
subject to the fulfillment to the satisfaction of, or waiver by,
the Agent of the following conditions precedent:”



14






 







		
	 	               (Q) Section 8.3 is hereby amended and restated in its entirety
as follows:
	 
	 	               “Section 8.3 Procedures for Funding MEDCO Loan. During the
Construction Period, within three (3) Business Days following
receipt by Agent of a Requisition, the Bank shall, subject to the
terms and conditions of this Article VIII, make additional advances
under the MEDCO Note to the Lessee, acting in its capacity as
construction agent for the Issuer pursuant to the Facility Lease,
in order to pay a portion of the Facility Costs for which the
Lessee is then seeking reimbursement for pursuant to the applicable
Requisition (each, a “Subsequent MEDCO Loan Advance”). Each
Subsequent MEDCO Loan Advance shall be made by the Bank to the
Lessee by wire transfer of immediately available federal funds and
shall be in an amount equal to three percent (3%) of the total
amount of the Facility Costs requested by the Lessee in the
applicable Requisition. The proceeds of each funding of a
Subsequent MEDCO Loan Advance by the Bank shall be used for the
sole purpose of paying Facility Costs which are due and payable on
the proposed funding date or reimbursing the Lessee for Facility
Costs previously paid by the Lessee prior to the proposed funding
date but subsequent to the immediately preceding funding date of a
Subsequent MEDCO Loan Advance. The Issuer hereby authorizes and
directs that all Subsequent MEDCO Loan Advances be made by the Bank
to the Lessee as contemplated in this Section 8.3.”
	 
	 	               (R) Section 8.4 is hereby deleted in its entirety.
	 
	 	               (S) Article IX is hereby amended and restated in its entirety
as follows:



“ARTICLE IX



RECEIPT, DISTRIBUTION AND APPLICATION OF RECEIPTS




		
	 	     Section 9.1 Rent Distribution. Except as otherwise provided in
Section
9.3, each payment of Facility Lease Basic Rent under the Facility Lease
as well as any payment of interest on overdue installments of Facility
Lease Basic Rent under the Facility Lease and any other monies paid over
by Lessee, Lessor, or Issuer to Agent for such purpose, shall be
distributed as promptly as possible (it being understood that any such
payments received by Agent on a timely basis and in accordance with the
provisions of the Facility Lease, the MEDCO Note and/or any other
Operative Document shall be distributed on the date received in the funds
so received) in the following order of priority:
	 
	 	     first, an amount equal to the aggregate amount (as well as any
interest on, to the extent permitted by law, overdue interest) then due
under the Credit Facility Documents and the Hedge Documents (if any)
shall be distributed and paid to the Credit Facility Providers and the
Hedge Counterparty;



15






 







		
	 	     second, the balance, if any, of such payment remaining thereafter
shall be
distributed and paid to the Bank or any subsequent holder of the MEDCO
Note, to the extent the Bank or any such subsequent holder of the MEDCO
Note shall be entitled to such amounts under the MEDCO Note or any other
Operative Document.
	 
	 	     Section 9.2 Distribution of Mandatory Prepayments and Other
Payments.
	 
	 	               (a) Except as otherwise provided in
Section 9.3, the amount of any
prepayment or payment received pursuant to Paragraphs 17 and 19 of the
Facility Lease shall in each case be distributed and paid in the
following order of priority:
	 
	 	     first, an amount equal to the aggregate amounts then due under the
Credit Facility Documents and the Hedge Documents, together with the
other amounts then due and owing to the Credit Facility Providers and the
Hedge Counterparty or otherwise required to be paid to the Credit
Facility Providers and the Hedge Counterparty as a result of the
prepayment made pursuant to Paragraphs 17 and 19 of the Facility Lease
shall be distributed and paid to the Credit Facility Providers and the
Hedge Counterparty, and in the case where the amount so to be distributed
shall be insufficient to pay in full as aforesaid, then, pro rata among
such Credit Facility Providers and the Hedge Counterparty, without
priority of one such Credit Facility Provider and the Hedge Counterparty
over the other, in the proportion that the unpaid principal amount as a
result of draws under the respective Letters of Credit due to each Credit
Facility Provider and Hedge Counterparty bears to the aggregate unpaid
principal amount due to all Credit Facility Providers and the Hedge
Counterparty;
	 
	 	     second, the balance, if any, of such payment remaining thereafter
shall be distributed and paid as follows: (i) so much of such payment as
is necessary to pay in full the aggregate principal amount of the MEDCO
Note and all accrued but unpaid interest thereon to the date of
distribution and all other amounts payable under or with respect to the
MEDCO Note and/or payable to the Bank shall be paid to the Bank or any
subsequent holder of the MEDCO Note; and (ii) the balance, if any, shall
be paid to the Lessee.
	 
	 	               (b) (i) Except as otherwise provided in
Section 9.3, the amount of any
prepayment or payment received as a result of the termination of the
Facility Lease with respect to the Property due to an Event of Loss
(including, without limitation, any insurance proceeds, condemnation
awards or payments by any Governmental Authority), shall be distributed
and paid in the following order of priority:
	 
	 	     first, so much of such payments or amounts as shall be required to
reimburse Agent for any tax, expense or other loss incurred by Agent (to
the extent not previously reimbursed and to the extent incurred in
connection with its duties as Agent) and any unpaid ongoing fees of Agent
shall be distributed to Agent for its own account;
	 
	 	     second, so much of such payments or amounts as shall be required to
reimburse the then existing or prior Credit Facility Providers and the
Hedge Counterparty for payments made by them to Agent pursuant to Section
3.4 of this Deed of Trust (to the extent not previously reimbursed), and
to pay such then existing or prior Credit Facility Providers and the
Hedge Counterparty the amounts payable to them pursuant to any



16






 







		
	 	expense reimbursement provisions of the Operative Documents shall be
distributed to each such Participant, without priority of one over the
other, in accordance with the amount of such payment or payments payable
to each such Participant;
	 
	 	     third, an amount equal to the aggregate unpaid principal of, and
accrued interest owed to the Credit Facility Providers and the Hedge
Counterparty pursuant to the Credit Facility Documents and the Hedge
Documents shall be paid and distributed to the Credit Facility Providers
and the Hedge Counterparty, and, in the case where the amount to be so
distributed shall be insufficient to pay such amount in full as
aforesaid, then pro rata among the Credit Facility Providers and the
Hedge Counterparty, without priority of one such Participant over
another, in the proportion that the amounts owed to each such Participant
bears to the aggregate unpaid amounts owed to all such Participants;
	 
	 	     fourth, the balance, if any, of such payment remaining thereafter
shall be distributed and paid as follows: (i) so much of such payment as
is necessary to pay in full the aggregate principal amount of the MEDCO
Note and all accrued but unpaid interest thereon to the date of
distribution shall be paid to the Bank or any subsequent holder of the
MEDCO Note; and (ii) the balance, if any, shall be paid to the Lessee.
	 
	 	               (ii.) Any payment received as a result of a Casualty or
Condemnation or
any Event of Loss that does not result in the termination of the Facility
Lease (including, without limitation, any insurance proceeds,
condemnation awards or payments by any Governmental Authority), shall be
paid to Lessee in accordance with this Deed of Trust if Lessee is
otherwise entitled thereto, and otherwise shall be distributed and paid
in accordance with Section 9.3.
	 
	 	               (c) The amount of any payment or
prepayment received pursuant to
Paragraph 19(f) of the Facility Lease shall be distributed and paid in
the following order of priority:




		
	 	             (i) If such payment
constitutes the proceeds of the sale of the
Property pursuant to Paragraph 19(f) of the Facility Lease or the
Residual Guaranty Amount,




		
	 	     first, an amount equal to the aggregate unpaid principal
of, and accrued interest owed to the Credit Facility
Providers and the Hedge Counterparty pursuant to the Credit
Facility Documents and the Hedge Documents shall be paid and
distributed to the Credit Facility Providers, and the Hedge
Counterparty, and, in the case where the amount to be so
distributed shall be insufficient to pay such amount in full
as aforesaid, then pro rata among the Credit Facility
Providers and the Hedge Counterparty, without priority of one
such Participant over another, in the proportion that the
amounts owed to each such Participant bears to the aggregate
unpaid amounts owed to all such Participants;
	 
	 	     second, the balance, if any, of such payment remaining
thereafter shall be distributed and paid as follows: (i) so
much of .such payment as is necessary to pay in full the
aggregate principal amount of the MEDCO



17






 







		
	 	Note and all accrued but unpaid interest thereon to the
date of distribution and all other amounts payable under or
with respect to the MEDCO Note and/or payable to the Bank
shall be paid to the Bank or any subsequent holder of the
MEDCO Note; and (ii) the balance, if any, shall be paid to
the Lessee.




		
	 	     Section 9.3 Distribution of Payments After Event of Default.
	 
	 	     (a) All payments received and amounts realized by Agent after an
Event of Default shall have occurred shall be distributed forthwith by
Agent in the following order of priority:




		
	 	     (i)     If such distribution is not proceeds from the sale of the
Property pursuant to Paragraph 19(f) of the Facility Lease or any
amount paid by the Lessee under Section 5.6 of this Deed of Trust,




		
	 	     first, so much of such payments or amounts as shall be
required to reimburse Agent for any tax, expense or other
loss incurred by Agent (to the extent Agent is entitled to
reimbursement therefore pursuant to the Operative Documents
and has not previously been reimbursed and to the extent
incurred in connection with its duties as Agent) and any
unpaid ongoing fees of Agent shall be distributed to Agent
for its own account;
	 
	 	     second, so much of such payments or amounts as shall.be
required to reimburse the then existing or prior Participants
for payments made by them to Agent pursuant to Section 3.4 of
this Deed of Trust (to the extent not previously reimbursed),
and to pay such then existing or prior Participants the
amounts payable to them pursuant to any expense reimbursement
provisions of the Operative Documents shall be distributed to
each such Participant, without priority of one over the
other, in accordance with the amount of such payment or
payments payable to each such Participant;
	 
	 	     third, an amount equal to the aggregate unpaid principal
of, and accrued interest owed to the Credit Facility
Providers and the Hedge Counterparty pursuant to the Credit
Facility Documents and the Hedge Documents shall be paid and
distributed to the Credit Facility Providers and the Hedge
Counterparty, and, in the case where the amount to be so
distributed shall be insufficient to pay such amount in full
as aforesaid, then pro rata among such Participants, without
priority of one such Participant over another, in the
proportion that the amounts owed to each such Participant
bears to the aggregate unpaid amounts owed to all such
Participants; and
	 
	 	     fourth, the balance, if any, of such payment remaining
thereafter shall be distributed and paid as follows: (i) so
much of such payment as is necessary to pay in full the
aggregate principal amount of the MEDCO Note and all accrued
but unpaid interest thereon to the date of distribution



18






 







		
	 	and all other amounts payable under or with respect to
the MEDCO Note and/or payable to the Bank shall be paid to
the Bank or any subsequent holder of the MEDCO Note; and (ii)
the balance, if any, shall be paid to the Lessee.




		
	 	     (b) During the occurrence or continuance of any Event of Default,
all amounts received or realized by Agent and otherwise distributable
pursuant to Section 9.1 or Section 9.2 shall be distributed as provided
in Section 9.3(a).
	 
	 	     Section 9.4 Other Payments.
	 
	 	     (a) Except as otherwise provided in Sections 9.1, 9.2 and 9.3 and
paragraph (b) below,




		
	 	     (i) any payments received by Agent for which no provision as
to the application thereof is made in the Operative Documents or
elsewhere in this Article TX, and
	 
	 	     (ii) all payments received and amounts realized by Agent under
the Facility Lease, the MEDCO Note and any other Operative Document
or otherwise with respect to the Secured Property to the extent
received or realized at any time after payment in full of all
amounts due under the Operative Documents to the Credit Facility
Providers and the Hedge Counterparty, as well as any other amounts
remaining as part of the Collateral after payment in full of all
amounts due under the Operative Documents to the Credit Facility
Providers and the Hedge Counterparty, shall be distributed
forthwith by Agent in the order of priority set forth in Section
9.2(a) (in the case of any payment described in clause (i) above)
or in Section 9.3(a) (in the case of any payment described in
clause (ii) above), except that in the case of any payment
described in clause (ii) above, such payment shall be distributed
omitting clauses “third” of such Section 9.3(a).




		
	 	     (b) Except after an Event of Default has occurred and is continuing,
any payment received by Agent for which provision as to the application
thereof is made in an Operative Document but not elsewhere in this
Article IX shall be distributed forthwith by Agent to the Person for the
purpose for which such payment was made in accordance with the terms of
such Operative Document.
	 
	 	     Section 9.5 [INTENTIONALLY LEFT BLANK]
	 
	 	     Section 9.6 Supplemental Rent. Except as otherwise provided in
Section 9.3, the amounts, if any, from time to time received by Agent
which constitute payments of Facility Lease Additional Rent (but
excluding any amount paid to any Person as an Indemnitee) shall be paid
to or upon the order of the Person entitled thereto pursuant to the
Operative Documents.
	 
	 	     Section 9.7 Guarantee Payments. Any payment received by Agent
pursuant to the Guarantee shall be distributed forthwith or retained by
Agent in the manner and subject to the same conditions as provided for in
this Article IX with respect to payments



19






 







		
	 	received by Agent in respect of the Lessee’s obligations as to which
such payment relates, all as if such payment had been made by the
Lessee.”
	 
	 	     (S) For purposes of Section 10.2, all notices sent to the Lessor
shall be sent to the Lessor at the following address: Maryland Economic
Development Corporation, 100 North Charles Street, Suite 630, Baltimore,
Maryland 21201, Attention: Executive Director.
	 
	 	     (T) The limitations on liability set forth in Section 10.9 for the
benefit of the Issuer shall also apply to and for the benefit of the
Lessor.
	 
	 	(e) The Guarantee is hereby amended as follows:
	 
	 	     (A) The third and fourth “WHEREAS” clauses are amended and restated
in its entirety as follows:
	 
	 	     “WHEREAS, simultaneously with the issuance of the Bonds, the Bank
has made a loan to the Issuer in aggregate principal amount of up to
$3,000,000.00 (the “MEDCO Loan”), as evidenced by that certain Promissory
Note and Security Agreement dated of even date herewith made by the
Issuer in favor of the Bank (the “MEDCO Note”), the proceeds of which
will be used by the Issuer to refinance that portion of the acquisition
cost of the Property not covered by the proceeds of the Bonds and to
finance that portion of the cost associated with the construction of the
Additional Improvements on the Property not covered by the proceeds of
the Bonds;
	 
	 	     “WHEREAS, the Issuer may enter into from time to time a Hedge
Agreement with the Hedge Counterparty (in each case, as defined in the
Lease Agreement dated as of October 25, 2001 between the Issuer, as
Lessor, and the Guarantor, as Lessee (as supplemented, the “Facility
Lease”));”
	 
	 	     (B) The last sentence in the first paragraph of Section 1 is hereby
amended and restated in its entirety as follows:
	 
	 	     “The term “Liabilities”, as used herein, shall mean all of the
foregoing (without duplication), in each case howsoever created, arising
or evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i)
all amounts now or hereafter payable by the Issuer under the Letter of
Credit Agreement and the MEDCO Note, (ii) all amounts now or hereafter
payable by the Issuer under the Hedge Agreement and (iii) all amounts now
or hereafter payable under the Facility Lease and any of the other
Operative Document (in each case whether or not Guarantor or any other
Person shall be relieved or released from any or all liability or
obligations under any of the Operative Documents, except on account of
the full and indefeasible payment of all the Liabilities and full and
strict compliance by Guarantor with its obligations hereunder); provided,
however, that notwithstanding anything to the contrary contained herein,
Guarantor shall not be obligated under any circumstances to pay under
this Guaranty, and the term “liabilities” shall not include, any amounts
greater than the Lessee (as defined in the Facility Lease) would have had
to pay, under the Facility Lease, the Deed of Trust and the other
Operative Documents, assuming that such



20






 







		
	 	documents were enforced in accordance with their terms (and without
giving effect to any discharge or limitation thereon resulting or arising
by reason or the bankruptcy or insolvency of the Lessee), plus all
reasonable costs actually incurred in enforcing this Guaranty.”
	 
	 	(f) The Letter of Credit Agreement is hereby amended as follows:
	 
	 	     (A) The second sentence of the second paragraph of the Recitals is
hereby amended and restated in its entirety as follows:
	 
	 	     “Pursuant to the Facility Lease, the Lessor will lease the Property
to the Lessee.”
	 
	 	     (B) The definition of Lessor in Section 1.1 is hereby amended and
restated in its entirety as follows:
	 
	 	     “Lessor means the Issuer.”
	 
	 	     (C) The definition of Owner Trust Estate in Section 1.1 is hereby
deleted.
	 
	 	     (D) Item (d) in Section 3.2 is hereby amended and restated in its
entirety as follows:
	 
	 	     “(d) All right, title and interest of the Issuer in and to the Deed
of Trust, the Collateral Pledge Agreement, the Facility Lease, the MEDCO
Note and all other collateral, documents and instruments securing the
payment and performance by the Lessee of its obligations under the
Facility Lease and the other Operative Documents.”
	 
	 	     (E) The first sentence of Section 9.1 is hereby deleted.



     10.      Ratification of Deed of Trust. Except as expressly modified by this
Agreement, the Deed of Trust is hereby ratified and reaffirmed and shall
continue in full force and effect. In confirmation of the foregoing, each of
the Issuer and the Lessee hereby ratifies and reaffirms the grant, bargain,
sale and conveyance of the Security Property previously made in the Deed of
Trust to the Individual Trustees, and, in confirmation of the foregoing, does
hereby presently grant, bargain, sell and convey the Security Property unto
the Individual Trustees, and each of the Issuer and the Lessee hereby ratifies
and reaffirms the assignment of all leases, rents and profits relating to the
Security Property previously made in the Deed of Trust to the Agent, and, in
confirmation of the foregoing, does hereby presently assign to the Agent all
leases, rents and profits relating to the Security Property, including, without
limitation, the Facility Lease, and all security therefor and all guarantees
thereof or of any of the Lessee’s obligations under the Operative Documents,
including, without limitation, the Guarantee, as the same may be amended,
supplemented or otherwise modified from time to time, IN TRUST, WITH POWER OF
SALE, to secure to the Agent the prompt payment and performance of the Secured
Obligations, subject, however, to the Permitted Encumbrances.


     11.     Ratification of Facility Lease. Except as expressly modified by this
Agreement, the Facility Lease and Lease Supplement are hereby ratified and
reaffirmed and shall continue in full force and effect as a direct lease from
the Issuer to the Lessee. In confirmation of the foregoing,


21






 


the Issuer and the Lessee hereby ratify and reaffirm the demise and
letting of the Property to the Lessee previously made in the Facility Lease and
Lease Supplement, and, in confirmation of the foregoing, the Issuer does hereby
presently demise and let to the Lessee and the Lessee does hereby presently
demise and let from the Issuer, on the terms and conditions set forth in the
Facility Lease and Lease Supplement, the Property, subject, however, to the
Permitted Exceptions.


     12.     Ratification of Guarantee. Except as expressly modified by this
Agreement, the Guarantee is hereby ratified and reaffirmed and shall continue
in full force and effect.


     13.      Ratification of Other Operative Documents. Except as expressly
modified by this Agreement, the Operative Documents are hereby ratified and
reaffirmed and shall continue in full force and effect.


     14.     Further Assurances. At the Lessee’s sole cost and expense, each party
hereto shall take, execute, acknowledge and deliver all further acts, documents
and assurances as may be reasonably necessary in order to carry out more
effectively the intent and purposes of this
Agreement and the transactions contemplated hereby. Without limiting the
generality of the foregoing, the following documents shall be delivered or
obtained by the parties, at the Lessee’s sole cost and expense: (i) all
applicable UCC financing statement amendments or terminations; (ii)
endorsements to the title insurance policies previously issued in favor of the
Agent; and (iii) such other documents as may be necessary to preserve and
protect the rights of the parties under the Operative Documents.


     15.      Accounting and Tax Treatment. This Agreement is being entered into by
the parties hereto, at the request of the Lessee, and, notwithstanding anything
herein or in any of the other Operative Documents or in any other document or
instrument entered into in connection herewith, the Lessee and the Guarantor
acknowledge and agree that none of the parties hereto have made any
representations or warranties regarding the Lessee’s accounting or tax
treatment for the transactions contemplated by the Facility Lease and the other
Operative Documents and that the Lessee and the Guarantor have obtained and
relied solely upon the advice of their own accounting and tax advisors
concerning this Agreement and the other Operative Documents for such purposes.


     16.      Recordation. The parties hereto consent to the recordation, at the
Lessee’s sole cost and expense, in the Land Records of Montgomery County,
Maryland, such documents as may be required to evidence the following pursuant
to this Agreement (i) the termination of the Head Lease and Memorandum of
Lease, (ii) assignment of the Facility Lease and Lease Supplement to the Issuer
and (iii) the amendments to the Deed of Trust.


     17.      Applicable Law. This Agreement shall be governed by the laws of the
State of Maryland.


     18.      Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of, and shall be enforceable by, the parties hereto
and each of their respective successors and assigns.


     19.     No
Novation. The parties hereto intend and agree that the
transactions contemplated


22






 


by this Agreement shall not constitute a novation of the Facility Lease,
the MEDCO Note or any other Operative Document.


     20.      Consent and Waiver. To the extent required pursuant to the terms of
any of the Operative Documents, the parties hereto and the Remarketing Agent
(i) acknowledge the delivery and receipt of any notices required under the
Operative Documents concerning the transactions contemplated herein, (ii)
consent to the transactions contemplated herein and to the amendments to the
Operative Documents set forth herein and (iii) waive any default or event of
default under the Operative Documents that would otherwise arise as a result of
the transactions
contemplated herein.


     21.      Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original for all purposes, and
all counterparts shall together constitute one and the same instrument.


     22.      Limitation on Issuer’s Liability. Notwithstanding any other provision
set forth in this Agreement or in any other agreement or document executed in
connection with or relating to the transactions contemplated by this Agreement
to the contrary:


     (a)  No provision of this Agreement or any other agreement or document
executed in connection with or relating to the transactions contemplated by
this Agreement shall be construed so as to give rise to any monetary or
pecuniary liability of the Issuer or of the State of Maryland, or any political
subdivision or agency thereof, or to give rise to a charge upon the general
credit of the undersigned or of the State of Maryland or any political
subdivision or agency thereof, and any claim based on or in respect of any
liability of the Issuer under this Agreement shall be enforced only as set
forth in this Section 22.


     (b)  Neither this Agreement nor any other agreement or document executed
in connection with or relating to the transactions contemplated by this
Agreement nor any claim hereunder or thereunder shall (i) constitute a debt of
the Issuer or of the State of Maryland, or any political subdivision or agency
thereof, or a pledge of the full faith and credit or taxing power of the State
of Maryland, or any political subdivision or agency thereof, or (ii) create any
monetary liability on, or obligate the Issuer or the State of Maryland, or any
political subdivision or agency thereof, to make any appropriation for payment.
The Issuer has no taxing authority.


     (c)  The liability of the Issuer under this Agreement and under any other
agreement or document executed in connection with or relating to this Agreement
shall be non-recourse to the Issuer, limited as set forth above in this Section
22; and the lien of any judgment shall be restricted to only the Issuer’s
interest in the Property (subject to the lien of the Deed of Trust), and not
against any assets, properties or funds of (i) any employee or agent of the
Issuer (or any director, officer, legal representative, successor, or assign of
any thereof), or (ii) any other Person affiliated with any of the foregoing,
including, without limitation, the State of Maryland or any department, agency
or instrumentality thereof, and the Issuer shall have no other liability,
legal, moral or otherwise, to the parties hereto, or any other Person, in
connection with the Property, this Agreement, or any other agreement or
document executed in connection with or relating to this Agreement. In no event
shall the Issuer be required to pay any claim under this Agreement or under any
other agreement or document executed in connection with or related to this
Agreement from any of its own funds.



23









 



     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on their behalf, under seal, by their respective signatories thereunto
duly organized as of the date first above written.



	 	 	 	 	 	 	 	 
	 	 	
ISSUER:
	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	
MARYLAND ECONOMIC DEVELOPMENT

CORPORATION, a body politic and corporate
	
	
and public instrumentality of the State of

	 	 	
Maryland
	 	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	Hans F. Mayer
	 	 	 	
	 	 
	 	 	 	 	 	Hans F. Mayer, Executive Director



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OWNER TRUSTEE:
	 
	WITNESS:	 	 	 	 	 	 
	 
	 	 	
WELLS FARGO BANK NORTHWEST,

NATIONAL ASSOCIATION, not in its
	
	
individual capacity, but solely as Owner

Trustee
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ 	Val T. Orton
	 	 	 	

	 	 	
Name:
	 	 	Val T. Orton
	 	 	
Title:
	 	 	Vice President



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	 	 	MARYLAND TRUSTEE:
	 	 	 	 	 
	WITNESS:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	/s/ Val T. Orton
	
	 	


	 	 	Val T. Orton, not in his individual capacity,

but solely as Maryland Trustee appointed

pursuant to that certain Trust Agreement

dated as of October 25, 2001



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	 	 	LESSEE:
	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	HUMAN GENOME SCIENCES, INC.,

a Delaware corporation
	
	 	 	 	 	 	 
	 	 	
By:
	 	/s/	 Steven C. Mayer
	 	 	 	

	 	 	
Name:
	 	 	Steven C. Mayer
	 	 	
Title:
	 	 	Senior Vice President and

Chief Financial Officer



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	 	 	 	GUARANTOR:	 	 	 
	 	 	 	 	 	 	 	 
	
WITNESS:
	 	HUMAN GENOME SCIENCES, INC.,

a Delaware corporation
	 
	 	 	 	By:
	 	/s/	Steven C. Mayer 
	


	 	 	

	 	 	 	Name:
	 	 	Steven C. Mayer
	 	 	 	Title:
	 	 	Senior Vice President and

Chief Financial Officer




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	 	 	 	 	PLEDGOR:
	 	 	 	 	 	 	 	 
	
WITNESS:
	 	 	HUMAN GENOME SCIENCES, INC.,

a Delaware corporation
	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/	Steven C. Mayer
	


	 	 	 	

	 	 	 	 	Name:
	 	 	Steven C. Mayer
	 	 	 	 	Title:
	 	 	Senior Vice President and

Chief Financial Officer



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	 	 	 	 	AGENT:
	 	 	 	 	 	 	 
	
WITNESS:
	 	 	 	ALLFIRST BANK, a Maryland banking

corporation, a division of M&T BANK
	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ Joseph C. LeMense
	


	 	 	

	 	 	 	 	 	Joseph C. LeMense

Vice President and Unit Manager



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	 	 	 	 	CERTIFICATE HOLDER:
	 	 	 	 	 	 	 
	
WITNESS:
	 	 	 	ALLFIRST BANK, a Maryland banking

corporation, a division of M&T BANK
	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ Joseph C. LeMense
	


	 	 	

	 	 	 	 	 	Joseph C. LeMense

Vice President and Unit Manager




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CREDIT FACILITY PROVIDER:
	 	 	 	 	 
	WITNESS:	 	
ALLFIRST BANK, a Maryland banking

corporation, a division of M&T BANK
	 	 	 	 	 
	 	 	
By:
	 	     /s/ Joseph C. LeMense
	
	 	 	 	

	 	 	 	 	Joseph C. LeMense
	 	 	 	 	Vice President and Unit Manager



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BOND TRUSTEE:
	 	 	 	 	 
	WITNESS:	 	
M&T BANK, a division of

MANUFACTURERS AND TRADERS

TRUST COMPANY (successor in interest

to ALLFIRST TRUST COMPANY

NATIONAL ASSOCIATION
	 	 	 	 	 
	 	 	
By:
	 	     /s/ Patrick Wood
	
	 	 	 	

	 	 	 	 	Patrick Wood
	 	 	 	 	Vice President



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COLLATERAL AGENT:
	 	 	 	 	 
	WITNESS:	 	
M&T BANK, a division of

MANUFACTURERS AND TRADERS

TRUST COMPANY (successor in interest

to ALLFIRST TRUST COMPANY

NATIONAL ASSOCIATION
	 	 	 	 	 
	 	 	
By:
	 	     /s/ Melanie Stranix
	
	 	 	 	

	 	 	 	 	Melanie Stranix
	 	 	 	 	Vice President



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INDIVIDUAL TRUSTEE:
	 	 	 	 	 
	WITNESS:	 	 	 	 
	 	 	 	 	 
	 	 	
By:
	 	     /s/ Joseph C. LeMense
	
	 	 	 	

	 	 	 	 	Joseph C. LeMense, as Individual Trustee



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INDIVIDUAL TRUSTEE:
	 	 	 	 	 
	WITNESS:	 	 	 	 
	 	 	 	 	 
	 	 	
By:
	 	     /s/ Garth C. Harding
	
	 	 	 	

	 	 	 	 	Garth C. Harding, as Individual Trustee



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	ACCEPTED AND APPROVED BY:
	 	 	 
	ALLFIRST BANK, a Maryland banking

corporation, and a division of M&T BANK,

as Remarketing Agent
	 	 	 
	By:	 	
/s/ Howard M. Sakin
	 	


	Name:	     
Howard M. Sakin
	Title:	     
Managing Director




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