exv10w27



 



Exhibit 10.27



AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT



     THIS AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT, dated as of July 19, 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 FIRST UNION NATIONAL BANK, a national banking
association, 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
FIRST UNION NATIONAL BANK, as Liquidity Providers; FLEET NATIONAL BANK, as
Fleet National Bank Collateral Agent; FIRST UNION NATIONAL BANK, 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
(the “Participation Agreement”);


     WHEREAS, the parties hereto wish to amend the definition of “Outside
Completion Date” set forth on Appendix A to the Participation Agreement;


     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 Definition of “Outside Completion Date”. The
definition of “Outside Completion Date” set forth on Appendix A to the
Participation Agreement is amended and restated to read in its entirety as
follows:



		
	 	     “Outside Completion Date” means in respect to the Traville
Facility December 31, 2003 and in respect to the Manufacturing
Facility December 31, 2004.”



ARTICLE II

CONDITIONS TO EFFECTIVE DATE



     SECTION 2.1. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof (the “Effective Date”) when each of the
conditions precedent set forth in this Article II shall have been satisfied or
waived 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:


 






 



		
	 	     (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 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.


     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 Effective 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 Effective Date; and on and as of the Effective Date there
exists no Construction Agency Default, Construction Agency Event of Default,
Lease Default or Lease Event of Default.


2






 


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.


ARTICLE V

MISCELLANEOUS


     SECTION 5.1. 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 5.2. 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 5.3. 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 5.4. 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 5.5. 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]


3






 


     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/ Val T. Orton

Name: Val T. Orton

Title: Vice President




	 	WELLS FARGO BANK NORTHWEST, N.A., not in

its individual capacity except as

specifically set forth herein, but solely

as Trustee




	 	By /s/ Val T. Orton

Name: Val T. Orton

Title: Vice President




	 	BANCBOSTON LEASING INVESTMENTS INC., as an

Investor




	 	By /s/ Steven S. Criscione

Name: Steven S. Criscione

Title: Vice President



 






 

 

	 	FIRST UNION NATIONAL BANK, as an Investor




	 	By /s/ Mario A. Ramirez

Name: Mario A. Ramirez

Title: Assistant Vice President




	 	EAGLEFUNDING CAPITAL
CORPORATION,
as a Lender






	 	By /s/ John T. Hackett III

Name: John T. Hackett

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




	 	FIRST UNION NATIONAL BANK, as First Union

Liquidity Provider




	 	By /s/ Mario A. Ramirez

Name: Mario A. Ramirez

Title: Assistant Vice President



 






 



	 	 FIRST UNION NATIONAL BANK, as First Union

Collateral Agent




	 	By /s/ Mario A. Ramirez

Name: Mario A. Ramirez

Title: Assistant Vice President