FIFTH LOAN MODIFICATION AGREEMENT

Exhibit 10.1

FIFTH LOAN MODIFICATION AGREEMENT

This Fifth Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of May 31, 2006, by and between SILICON VALLEY BANK, a California-chartered bank, with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name “Silicon Valley East” (“Bank”) and COLLAGENEX PHARMACEUTICALS, INC., a Delaware corporation with its chief executive office located at 00 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (“Borrower”).

1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan arrangement dated as of March 19, 2001, evidenced by, among other documents, a certain Loan and Security Agreement dated as of March 19, 2001, between Borrower and Bank, as amended (the “Loan Agreement”). Capitalized terms used but not otherwise defined herein shall have the same meaning as in the Loan Agreement.

Hereinafter, all indebtedness and obligations owing by Borrower to Bank shall be referred to as the “Obligations”.

2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the Collateral as described in the Loan Agreement and the Intellectual Property Collateral, as described in the Intellectual Property Security Agreement dated as of March 19, 2001, between the Borrower and the Bank (together with any other collateral security granted to Bank, the “Security Documents”).

Hereinafter, the Security Documents, together with all other documents evidencing, securing or otherwise executed in connection with the Obligations shall be referred to as the “Existing Loan Documents”.

3. DESCRIPTION OF CHANGE IN TERMS.

Modifications to Loan Agreement. From and after the execution of this Loan Modification Agreement, the Loan Agreement shall be amended as follows:

	i.		By deleting the following text appearing in the “Unused Line Fee” subsection of Section 3 of the Schedule to the Loan Agreement:
			“0.375% per annum.”
			and inserting the following in lieu thereof:
			“0.25% per annum.”

	ii.		By deleting the “Maturity Date” set forth in Section 4 of the Schedule to the Loan Agreement in its entirety and inserting the following in lieu thereof:
			“May 31, 2007.”

	iii.		By deleting the Minimum Tangible Net Worth covenant in Section 5a. of the Schedule to the Loan Agreement in its entirety and inserting the following in lieu thereof:
			“a. Minimum Tangible Net Worth:
			Borrower shall at all times maintain a Tangible Net Worth, tested quarterly, of not less than the sum of (i) plus (ii) plus (iii) below:
			(i)	(a) as of March 31, 2006, $35,000,000;
				(b) as of June 30, 2006, $25,000,000;
				(c) as of September 30, 2006, $15,000,000;
				(d) as of December 31, 2006 and each quarter end thereafter, $10,000,000;
			plus
			(ii)   50% of Borrower’s quarterly net income (if positive) in fiscal year 2007;
			plus
			(iii)   50% of all consideration received after the date hereof from proceeds from the issuance of any equity securities of the Borrower and/or subordinated debt incurred by the Borrower.
			In no event shall the required amount of this Minimum Tangible Net Worth covenant be decreased.”
	iv.		By deleting Section 5b. and Section 5c. of the Schedule to Loan Agreement.
	v.		By deleting EXHIBIT B thereto in its entirety and inserting in lieu thereof EXHIBIT B attached hereto.

4. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Intellectual Property Security Agreement dated as of March 19, 2001 between Borrower and Bank, and acknowledges, confirms and agrees that, except as previously disclosed in writing to Bank, said Intellectual Property Security Agreement

contains an accurate and complete listing of all Intellectual Property Collateral (as defined in said Intellectual Property Security Agreement) and shall remain in full force and effect.

5. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms, and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate delivered to the Bank on or about June 7, 2004, and acknowledges, confirms and agrees the disclosures and information provided therein has not changed, as of the date hereof.

6. ADDITIONAL COVENANTS. Borrower shall not, without providing the Bank with thirty (30) days prior written notice: (i) relocate its principal executive office or add any new offices or business locations or keep any Collateral in any additional locations, or (ii) change its jurisdiction of organization, or (iii) change its organizational structure or type, (iv) change its legal name, or (v) change any organizational number (if any) assigned by its jurisdiction of organization. In addition, the Borrower hereby certifies that no Collateral is in the possession of any third party bailee other than Cord Logistics (such as at a warehouse). In the event that Borrower, after the date hereof, intends to store or otherwise deliver the Collateral to such a bailee, then Borrower shall first receive, the prior written consent of Bank and such bailee must acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank.

7. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file financing statements without notice to Borrower, with all appropriate jurisdictions, as Bank deems appropriate, in order to further perfect or protect Bank’s interest in the Collateral.

8. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary to reflect the changes described above.

9. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of the Existing Loan Documents and all security or other collateral granted to the Bank, and confirms that the indebtedness secured thereby includes, without limitation, the Obligations.

10. NO DEFENSES OF BORROWER. The Borrower hereby acknowledges and agrees that the Borrower has no offsets, defenses, claims, or counterclaims against the Bank or the Bank’s officers, directors, employees, attorneys, representatives, predecessors, affiliates, subsidiaries, parents, successors, and assigns with respect to the Obligations, and/or the Existing Loan Documents, and that if the Borrower now has, or ever did have, any offsets, defenses, claims, or counterclaims against the Bank or the Bank’s officers, directors, employees, attorneys, representatives, predecessors, affiliates, subsidiaries, parents, successors, and assigns, whether known or unknown, at law or in equity, from the beginning of the world through this date and through the time of execution of this Loan Modification Agreement, with respect to the Obligations and/or the Existing Loan Documents, all of them are hereby expressly WAIVED, and the Borrower hereby

RELEASES the Bank and the Bank’s officers, directors, employees, attorneys, representatives, predecessors, successors, and assigns from any liability therefor.

11. FEES. Upon or prior to the execution of this Loan Modification Agreement, Borrower shall pay to Bank a fee in the amount of $12,500.00, which fee shall be retained by Bank and not applied in reduction of the Obligations. In addition, the Borrower shall reimburse Bank for all legal fees and expenses incurred in connection with this amendment to the Existing Loan Documents.

12. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the existing Obligations, Bank is relying upon Borrower’s representations, warranties, and agreements, as set forth in the Existing Loan Documents. Except as expressly modified pursuant to this Loan Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect. Bank’s agreement to modify the existing Obligations pursuant to this Loan Modification Agreement in no way shall obligate Bank to make any future modifications to the Obligations. Nothing in this Loan Modification Agreement shall constitute a satisfaction of the Obligations. It is the intention of Bank and Borrower to retain as liable parties all makers of Existing Loan Documents, unless the party is expressly released by Bank in writing. No maker will be released by virtue of this Loan Modification Agreement.

13. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its properties, unconditionally, the non-exclusive jurisdiction of any state or federal court of competent jurisdiction in the Commonwealth of Massachusetts in any action, suit, or proceeding of any kind against it which arises out of or by reason of this Loan Modification Agreement; provided, however, that if for any reason Bank cannot avail itself of the courts of the Commonwealth of Massachusetts, then venue shall lie in Santa Xxxxx County, California. NOTWITHSTANDING THE FOREGOING,  THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK’S RIGHTS AGAINST THE BORROWER OR ITS PROPERTY.

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This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above.

BORROWER:				BANK:
COLLAGENEX PHARMACEUTICALS, INC.				SILICON VALLEY BANK
By:	/s/ XXXXX X. XXXXXXXXX			By:	/s/ XXXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxxxxx				Name: Xxxxxx X. Xxxxxx
Title: SVP & CFO				Title: Relationship Manager

The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty dated March 19, 2001 (the “Guaranty”) and a certain Security Agreement dated March 19, 2001 (the “Security Agreement”) and acknowledges, confirms and agrees that the Guaranty and the Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith.

MMP, INC.

By:	/s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Secretary

EXHIBIT B

COMPLIANCE CERTIFICATE

TO:         SILICON VALLEY BANK

FROM:   COLLAGENEX PHARMACEUTICALS, INC.

The undersigned authorized officer of CollaGenex Pharmaceuticals, Inc. certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below and (ii) all representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered.

Please indicate compliance status by circling Yes/No under “Complies” column.

Reporting Covenant		Required		Complies
Interim financial statements with CC		Monthly within 30 days		Yes    No
Quarterly and Annual financial statements (CPA Audited)		Within 5 days of filing with SEC		Yes    No
BBC A/R Agings, and deferred revenue schedule		Monthly within 30 days		Yes    No

Financial Covenant		Required		Actual		Complies
Maintain:
Minimum Quarterly Tangible Net Worth		$________*		$_______		Yes    No

*Tangible Net Worth requirement will be increased by (i) 50% of Borrower’s net income (if positive) for fiscal year 2007 and, (ii) 50% of all consideration received from the proceeds of the issuance of any equity securities of Borrower and/or subordinated debt incurred by Borrower

Comments Regarding Exceptions: See Attached.
Sincerely,
_____________________________
SIGNATURE
_____________________________
TITLE _____________________________
DATE BANK USE ONLY
Received by: _____________________
                       AUTHORIZED SIGNER

Date:_________________________

Verified: ________________________
                      AUTHORIZED SIGNER

Date:_________________________

Compliance Status:              Yes     No