exv10w28



 



Exhibit 10.28



AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT


     THIS AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT, dated as of December 31,
2002 (this “Amendment”), is entered into by and among HUMAN GENOME SCIENCES,
INC., a Delaware corporation, as Lessee and Construction Agent; GENOME
STATUTORY TRUST 2001A, a Connecticut statutory business trust, as Lessor; WELLS
FARGO BANK NORTHWEST, N.A., not in its individual capacity except as
specifically set forth herein, but solely as Trustee; BANCBOSTON LEASING
INVESTMENTS INC., a Delaware corporation and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (as successor to FIRST UNION
NATIONAL BANK), as Investors; EAGLEFUNDING CAPITAL CORPORATION, a Delaware
corporation, as Eagle; FLEET SECURITIES, INC., a Delaware corporation, as
Administrator of Eagle; FLEET NATIONAL BANK, a national banking association and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Liquidity Providers; FLEET NATIONAL
BANK, as Fleet National Bank Collateral Agent; WACHOVIA BANK, NATIONAL
ASSOCIATION, as First Union Collateral Agent; and FLEET NATIONAL BANK, as
Administrative Agent. The capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in Appendix A of the
Participation Agreement (as defined below).


R E C I T A L S


     WHEREAS, Lessee, Construction Agent, Lessor, Trustee, the Investors,
Eagle, the Administrator, the Liquidity Providers, Fleet National Bank
Collateral Agent, First Union Collateral Agent and Administrative Agent are
parties to that certain Participation Agreement dated as of November 7, 2001
(as amended by Amendment No. 1 to Participation Agreement, dated as of July 19,
2002, the “Participation Agreement”);


     WHEREAS, in connection with the execution and delivery of this Amendment,
the parties hereto are executing and delivering that certain Letter Agreement,
dated as of the date hereof (the “Letter Agreement”), which provides for the
temporary waiver of certain potential defaults of Lessee and Construction Agent
under the Operative Documents;


     WHEREAS, the parties had previously agreed to clarify the provisions of
the Participation Agreement to reflect the parties’ original understanding
relating to the level of equity contributions to the Lessor;


     WHEREAS, the parties hereto wish to make certain clarifying amendments to
the Participation Agreement, effective as of November 7, 2001, relating to
equity contributions to the Lessor, the outstanding principal amount of the
Loans and the Fees payable;


     NOW, THEREFORE, in consideration of the mutual terms and conditions
contained herein and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:


 






 


ARTICLE I


AMENDMENTS


     SECTION 1.1. Amendment to Section 2.2(a). Section 2.2(a) of the
Participation Agreement is amended and restated to read in its entirety as
follows:



		
	 	     “(a) Expenditures. Each Participant shall make available
(subject to the other limitations contained in any Operative
Document on such Participant’s obligation to make available any
Investor Contribution or Loan, as the case may be) its respective
share of each Advance payable on the related Advance Date
(including Construction Period Accrued Interest to the extent
allocable to such items) as follows:




		
	 	     (i) each Investor shall, in the form of equity contributions
to Lessor, make available to Administrative Agent on behalf of
Lessor on such Advance Date in immediately available funds an
amount (each, an “Investor Contribution”) equal to the sum of (y)
the product of the Eligible Amount of the Advance being funded on
such Advance Date multiplied by such Investor’s Percentage Share
multiplied by 3.21%, plus (z) the product of the Noneligible
Amount of the Advance being funded on such Advance Date multiplied
by such Investor’s Percentage Share; provided, that no Investor
shall be obligated to make available any Investor Contribution to
the extent that, after giving effect to the proposed Investor
Contribution, the outstanding aggregate amount of all Investor
Contributions attributable to such Investor would exceed such
Investor’s Commitment Amount;
	 
	 	     (ii) the Conduit may, in its sole discretion, (y) elect to
(A) issue, if necessary, Commercial Paper Notes, and/or (B) make
Borrowings from the Liquidity Providers under the Liquidity
Agreement, and (z) with the proceeds thereof, make Conduit Loans
on such Advance Date to Lessor (which shall be contributed
directly to Administrative Agent on behalf of Lessor and the
amount so funded shall be deemed a contribution to Lessor), in the
case of clauses (y) and (z) in an amount equal to the product of
the Eligible Amount of the Advance being funded on such Advance
Date multiplied by 96.79%; and
	 
	 	     (iii) with respect to any Advance Date on which Conduit
elects not to or otherwise does not make a Conduit Loan, the
Liquidity Providers shall make Facility Loans by funding the same
to Administrative Agent for the account of Lessor (which shall be
funded directly to Administrative Agent on behalf of Lessor and
the amount so funded shall be deemed a Facility Loan) on such
Advance Date in immediately available funds in an amount equal to
the product of the Eligible Amount of the Advance being funded on
such Advance Date multiplied by such Liquidity Provider’s Pro Rata
Portion multiplied by 96.79%; provided, that no Liquidity Provider
shall be obligated to make any Facility Loan to the extent that,
after giving effect to the proposed Facility Loan, the outstanding
aggregate principal amount of all Loans held by such Liquidity
Provider, plus the outstanding principal amount of all fundings
under the Liquidity Agreement, would exceed such Liquidity
Provider’s Commitment Amount.”



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     SECTION 1.2. Amendment to Section 2.2.2. Section 2.2.2 of the
Participation Agreement is amended and restated to read in its entirety as
follows:



		
	 	     “SECTION 2.2.2. [Intentionally Omitted]”



     SECTION 1.3. Amendment to Section 2.2.3. Section 2.2.3 of the
Participation Agreement is amended and restated to read in its entirety as
follows:



		
	 	     “SECTION 2.2.3. [Intentionally Omitted]”



     SECTION 1.4. Amendment to Section 2.2.4. Section 2.2.4 of the
Participation Agreement is amended and restated to read in its entirety as
follows:



		
	 	     "SECTION 2.2.4. [Intentionally Omitted]”



     SECTION 1.5. Amendment to Appendix A to the Participation Agreement to
Delete the Definition of “Equity Percentage”. Appendix A to the Participation
Agreement is amended by deleting in its entirety the definition of “Equity
Percentage” set forth therein.


     SECTION 1.6. Amendment to Appendix A to the Participation Agreement to
Delete the Definition of “Loan Percentage”. Appendix A to the Participation
Agreement is amended by deleting in its entirety the definition of “Loan
Percentage” set forth therein.


     SECTION 1.7. Amendment to Appendix A to the Participation Agreement to
Insert the Definition of “Eligible Amount”. Appendix A to the Participation
Agreement is amended by inserting in the proper alphabetical location the
definition of “Eligible Amount” to read in its entirety as follows:



		
	 	     “‘Eligible Amount’ means, in respect of any Advance being
made on any Advance Date, an amount equal to the aggregate amount
of Eligible Accrued Project Costs being funded with the proceeds
of such Advance, as set forth on the Advance Request applicable to
such Advance.”



     SECTION 1.8. Amendment to Appendix A to the Participation Agreement to
Insert the Definition of “Noneligible Amount”. Appendix A to the Participation
Agreement is amended by inserting in the proper alphabetical location the
definition of “Noneligible Amount” to read in its entirety as follows:



		
	 	     “‘Noneligible Amount’ means, in respect of any Advance being
made on any Advance Date, an amount equal to the difference of the
aggregate amount of such Advance minus the Eligible Amount of such
Advance.”



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     SECTION 1.9. Amendment to Appendix A to the Participation Agreement to
Insert the Definition of “Eligible Ratio”. Appendix A to the Participation
Agreement is amended by inserting in the proper alphabetical location the
definition of “Eligible Ratio” to read in its entirety as follows:



		
	 	     “‘Eligible Ratio’ means, as of any date of determination, a
quotient, expressed as a percentage, (a) the numerator of which
equals the aggregate amount of Eligible Amounts advanced to Lessee
prior to such date of determination pursuant to Section 2.2 of the
Participation Agreement, and (b) the denominator of which equals
the aggregate amount of all Advances advanced to Lessee prior to
such date of determination pursuant to Section 2.2 of the
Participation Agreement.”



     SECTION 1.10. Amendment to Appendix A to the Participation Agreement to
Insert the Definition of “Noneligible Ratio”. Appendix A to the Participation
Agreement is amended by inserting in the proper alphabetical location the
definition of “Noneligible Ratio” to read in its entirety as follows:



		
	 	     “‘Noneligible Ratio’ means, as of any date of determination,
a quotient, expressed as a percentage, (a) the numerator of which
equals the aggregate amount of Noneligible Amounts advanced to
Lessee prior to such date of determination pursuant to Section 2.2
of the Participation Agreement, and (b) the denominator of which
equals the aggregate amount of all Advances advanced to Lessee
prior to such date of determination pursuant to Section 2.2 of the
Participation Agreement.”



     SECTION 1.11. Amendment to Appendix A to the Participation Agreement to
Amend the Definition of “Investor Contribution”. The definition of “Investor
Contribution” set forth on Appendix A to the Participation Agreement is amended
and restated to read in its entirety as follows:



		
	 	     “‘Investor Contribution’ is defined in Section 2.2(a)(i) of
the Participation Agreement.”



     SECTION 1.12. Amendment to Appendix A to the Participation Agreement to
Amend the Definition of “Required Liquid Collateral Amount”. The definition of
“Required Liquid Collateral Amount” set forth on Appendix A to the
Participation Agreement is amended and restated to read in its entirety as
follows:

4






 



		
	 	     “‘Required Liquid Collateral Amount’ means, on any
determination date with respect to the Fleet National Bank Liquid
Collateral or the First Union Liquid Collateral, an amount equal
to the sum of (a) + (b) + (c), where:




		
	 	     (a) equals the product of




		
	 	     (i) 102%, times




		
	 	     (ii) the product of (A) times (B) times (C) times (D), where
(A) is the applicable Liquidity Provider Share determined as of
the Documentation Date, (B) is 96.79%, (C) is the Eligible Ratio,
and (D) is the then Lease Balance, including, without duplication,
capitalized interest and Yield.




		
	 	     (b) equals the product of (i) the applicable Investor’s
Percentage Share determined as of the Documentation, times (ii)
3.21%, times (iii) the Eligible Ratio, times (iv) the Lease
Balance, including, without duplication, capitalized interest and
Yield.




		
	 	     (c) equals the product of (i) the applicable Investor’s
Percentage Share determined as of the Documentation Date, times
(ii) the Noneligible Ratio, times (iii) the Lease Balance,
including, without duplication, capitalized interest and Yield.



For purposes of calculating Required Liquid Collateral Amount,
BancBoston Leasing Investments Inc. and its successors and assigns is
the applicable Investor when the calculation above is made with respect
to the Fleet Liquidity Provider and its successors and assigns, and
Wachovia Bank, National Association and its successors and assigns is
the applicable Investor when the calculation above is made with respect
to the First Union Liquidity Provider and its successor and assigns.”


     SECTION 1.13. Amendment to Appendix A to the Participation Agreement to
Amend the Definition of “First Union”. The definition of “First Union” set
forth in Appendix A to the Participation Agreement is amended and restated to
read in its entirety as follows:



		
	 	     ‘First Union’ means Wachovia Bank, National Association.”



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     SECTION 1.14. Amendment to Schedule II to the Participation Agreement.
The Commitment Amount of each Participant (or if a Person has made commitments
in more than one capacity, then the Commitment Amount in each such capacity) is
hereby amended and restated to be the amount set forth opposite a Participant’s
name:



  	 	 	 	 	 
	
Investors:
	 	Commitment
        Amount
	
	
	
	

	BancBoston Leasing Investments, Inc.
	 	$	9,000,000	 
	
	
	
	
    
	
First Union
	 	$	9,000,000	 
	
	
	
	

	Lenders:
	 	 	 	 
	
	
	
	
    
	
EagleFunding Capital Corporation
	 	$	432,000,000	 
	
	
	
	

	Fleet National Bank

	 	 	 	 
	
	
	
	
    
	 	
A Loan
	 	$	210,874,860	 
	
	
	
	

	 	B Loan
	 	$	30,124,980	 
	 
	 	 	
	 
	
 
	 	$	240,999,840	 
	 
	 	 	
	 
	
Wachovia Bank, National Association
	 	 	 	 
	 	A Loan
	 	$	167,125,140	 
	
	
	
	
    
	 	
        B Loan
	 	$	23,875,020	 
	 
	 	 	
	 
	
 
	 	$	191,000,160	 
	 
	 	 	
	 
	Liquidity Providers:
	 	 	 	 
	
	
	
	
    
	
Fleet National Bank
	 	$	245,819,837	 
	
	
	
	

	Wachovia Bank, National Association
	 	$	194,820,163	 



     SECTION 1.15. Amendment to Appendix A to the Participation Agreement to
Amend the Definition of “A Percentage”. The definition of “A Percentage” set
forth on Appendix A to the Participation Agreement is amended and restated to
read in its entirety as follows:



		
	 	     “‘A Percentage’ means, in respect of any Advance being made
on any Advance Date, the product (expressed as a percentage) of
(a) 87.5% times (b) the difference of (i) 100% minus (ii) the
aggregate percentage of such Advance funded by the Investors
pursuant to clauses (y) and (z) of Section 2.2(a)(i).”



     SECTION 1.16. Amendment to Appendix A to the Participation Agreement to
Amend the Definition of “B Percentage”. The definition of “B Percentage” set
forth on Appendix A to the Participation Agreement is amended and restated to
read in its entirety as follows:



		
	 	     “‘B Percentage’ means, in respect of any Advance being made
on any Advance Date, the product (expressed as a percentage) of
(a) 12.5% times (b) the difference of (i) 100% minus (ii) the
aggregate percentage of such Advance funded by the Investors
pursuant to clauses (y) and (z) of Section 2.2(a)(i).”



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ARTICLE II

CONDITIONS TO SATISFACTION DATE


     SECTION 2.1. Conditions to Effectiveness. Upon the satisfaction or waiver
in writing by Lessor, Trustee, the Investors, Eagle, the Administrator, the
Liquidity Providers, Fleet National Bank Collateral Agent, First Union
Collateral Agent and Administrative Agent of each of the conditions precedent
set forth in this Article II on the date hereof (the “Satisfaction Date”), this
Amendment shall be deemed effective as of November 7, 2001:



		
	 	     (a) Compliance with Warranties. The representations and warranties
set forth in Article III hereof shall be true and correct.




		
	 	     (b) Transaction Costs; Fees. All fees, costs and expenses due and
payable pursuant to Section 7.1 of the Participation Agreement, including
all reasonable fees and expenses of Mayer, Brown, Rowe & Maw in
connection with the execution and delivery of this Amendment, shall have
been paid in full by Lessee and Construction Agent.




		
	 	     (c) Counterparts. The Administrative Agent shall have received
counterparts of this Amendment duly executed by Lessee, Construction
Agent, Lessor, Trustee, the Investors, Eagle, the Administrator, the
Liquidity Providers, Fleet National Bank Collateral Agent, and First
Union Collateral Agent.



ARTICLE III

REPRESENTATIONS AND WARRANTIES


     In order to induce Lessor, Trustee, the Investors, Eagle, the
Administrator, the Liquidity Providers, Fleet National Bank Collateral Agent,
First Union Collateral Agent and the Administrative Agent to enter into this
Amendment, Lessee and Construction Agent hereby represent and warrant unto each
other party hereto on and as of, and as if the Letter Agreement were effective
on and as of, the date hereof:


     SECTION 3.1. Corporate and Governmental Authorization; Non-Contravention;
Due Execution, etc. The execution, delivery and performance by each of Lessee
and Construction Agent of this Amendment are within the corporate powers of
each of Lessee and Construction Agent, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of either of Lessee or Construction
Agent or of any agreement, judgment, injunction, order, decree or other
instrument binding upon either of Lessee or Construction Agent (including the
Operative Documents) or result in the creation or imposition of any Lien on any
asset of Lessee or Construction Agent, in each case, which would result in a
material adverse effect on either of Lessee’s or Construction Agent’s ability
to fulfill its obligations under the Operative Documents to which it is a
party. This Amendment has been duly executed and delivered by each of Lessee
and Construction Agent.


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     SECTION 3.2. Binding Effect. This Amendment constitutes a valid and
binding agreement of each of Lessee and Construction Agent, enforceable against
each of Lessee and Construction Agent in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles.


     SECTION 3.3. Representations and Warranties True; Absence of Defaults,
etc. The representations and warranties of each of Lessee and Construction
Agent contained in the Participation Agreement are true and correct on and as
of the Satisfaction Date except to the extent such representations and
warranties relate to a specific date, in which case such representations and
warranties are true and correct on and as of such specified date; each of
Lessee and Construction Agent has performed all agreements on its part required
to be performed under the Participation Agreement and the other Operative
Documents on or prior to the Satisfaction Date; and on and as of the
Satisfaction Date there exists no Construction Agency Default, Construction
Agency Event of Default, Lease Default or Lease Event of Default.


ARTICLE IV

INTERPRETATION


     SECTION 4.1. Ratification of and References to the Participation
Agreement. This Amendment shall be deemed to be an amendment to the
Participation Agreement, and the Participation Agreement, as amended hereby, is
hereby ratified, approved and confirmed in each and every respect. All
references to the Participation Agreement in any Operative Document or any
other document, instrument, agreement or writing shall hereafter be deemed to
refer to the Participation Agreement as amended hereby.


     SECTION 4.2. Limited Amendment of the Participation Agreement. Except as
specifically amended or modified herein, the Participation Agreement and the
other Operative Documents shall continue in full force and effect in accordance
with the provisions thereof and except as expressly set forth herein the
provisions hereof shall not operate as a waiver or amendment of any right,
power or privilege of Lessor, Trustee, the Investors, Eagle, the Administrator,
the Liquidity Providers, Fleet National Bank Collateral Agent, First Union
Collateral Agent or the Administrative Agent nor shall the entering into of
this Amendment preclude Lessor, Trustee, the Investors, Eagle, the
Administrator, the Liquidity Providers, Fleet National Bank Collateral Agent,
First Union Collateral Agent or the Administrative Agent from refusing to enter
into any further or future amendments.


     SECTION 4.3. Amendment is an Operative Document. This Amendment shall be
deemed an Operative Document.


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ARTICLE V

COVENANTS


     SECTION 5.1. Addition of A Certain Schedule: True Up. The parties
hereto acknowledge that Lessee is in the process of calculating the portion of
the Advances, Fees and capitalized interest and Yield that should have been
advanced or paid, as applicable, from and including November 7, 2001 through
January 22, 2003 for each Participant. Lessee agrees to proceed diligently,
after consultation with the Participants, to provide a Schedule X that will be
attached hereto and be made a part of this Amendment. Schedule X will set
forth the amount of Fees and interest and Yield on each Scheduled Payment Date
that should have been paid or capitalized in accordance with the Participation
Agreement, as amended hereby, and also will provide the portion of each Advance
on each Advance Date that each Participant should have made pursuant to the
Participation Agreement, as amended hereby (the “Corrected Calculations”).
Schedule X will compare such Corrected Calculations to the actual amounts
advanced, paid or capitalized with respect to each Participant. Upon agreement
of all the parties hereto that Schedule X is acceptable, it shall be signed by
each party hereto and automatically become attached hereto and incorporated
herein as if it were attached as of the Satisfaction Date. Lessee shall true
up any amounts indicated as owed to any Participant on Schedule X on the next
Advance Date occurring at least three Business Days following acceptance of
Schedule X by all parties hereto, by including such amounts in the Advance
Request.


ARTICLE VI

MISCELLANEOUS


     SECTION 6.1. Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.


     SECTION 6.2. Captions. Section captions used in this Amendment are
inserted for convenience of reference only and shall not affect the
construction of this Amendment or any provisions hereof.


     SECTION 6.3. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER
CONFLICTS OF LAWS PRINCIPLES AND CHOICE OF LAW RULES OF NEW YORK.


     SECTION 6.4. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.


     SECTION 6.5. Instructions. The Participants hereby authorize and direct
the Trustee to enter into, execute and deliver this Amendment and perform all
of the obligations of the Trust thereunder.


[Signature pages follow]


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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.



	 	HUMAN GENOME SCIENCES, INC.,

as Lessee and Construction Agent




	 	By /s/ Steven C. Mayer
	 	Name: Steven C. Mayer
	 	Title: Senior Vice President and CFO
	 	 
	 	FLEET NATIONAL BANK, as Administrative Agent
	 	 
	 	By /s/ Kimberly Martone
	 	Name: Kimberly Martone
	 	Title: Managing Director
	 	 
	 	GENOME STATUTORY TRUST 2001A, as Lessor
	 	 
	 	By: Wells Fargo Bank
Northwest, N.A., not in

its individual capacity except as

specifically set forth herein, but solely

as Trustee




	 	By /s/ Rick Webster

Name: Rick Webster

Title: Assistant Trust Officer
	 	 
	 	WELLS FARGO BANK NORTHWEST,
N.A., not in

its individual capacity except as specifically set forth

herein, but solely as Trustee
	 	 
	 	By /s/ Rick Webster
	 	Name: Rick Webster
	 	Title: Assistant Trust Officer



 






 



	 	BANCBOSTON LEASING INVESTMENTS INC., as

an Investor
	 	 
	 	By /s/ Steven S.
Criscione
	 	Name: Steven S. Criscione
	 	Title: Vice President




	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as

an Investor




	 	By /s/ Barbara K. Angel
	 	Name: Barbara K. Angel
	 	Title: Vice President




	 	EAGLEFUNDING CAPITAL CORPORATION,

as a Lender
	 	 
	 	By: FLEET SECURITIES, INC.,

its attorney-in-fact
	 	 
	 	By /s/ John T. Hackett
III
	 	Name: John T. Hackett III
	 	Title: Director




	 	FLEET SECURITIES, INC., as Administrator of

EagleFunding Capital Corporation




	 	By /s/ Thomas M. Calhoun
	 	Name: Thomas M. Calhoun
	 	Title: Director




	 	FLEET NATIONAL BANK, as Fleet Liquidity Provider
	 	 
	 	By /s/ Kimberly Martone
	 	Name: Kimberly Martone
	 	Title: Managing Director



 






 



	 	FLEET NATIONAL BANK, as Fleet National Bank

Collateral Agent
	 	 
	 	By /s/ Kimberly Martone
	 	Name: Kimberly Martone
	 	Title: Managing Director




	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as

First Union Liquidity Provider
	 	 
	 	By /s/ Barbara K. Angel
	 	Name: Barbara K. Angel
	 	Title: Vice President




	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as

First Union Collateral Agent
	 	 
	 	By /s/ Barbara K. Angel
	 	Name: Barbara K. Angel
	 	Title: Vice President