Fifth Amendment to Loan and Security Agreement


 Exhibit 10.1 
  
 FIFTH AMENDMENT 
 TO 
 LOAN AND SECURITY AGREEMENT 
  
 This Fifth Amendment to Loan and Security Agreement is entered into on December 13, 2005, but shall be retroactively effective to October 31,
2005 (the “Amendment”), by and between COMERICA BANK (“Bank”) and BIOMARIN PHARMACEUTICAL INC. (“Borrower”). 
  
 RECITALS 
  
 Borrower and Bank are parties to that certain Loan and Security Agreement dated May 14, 2004, as amended by a First Amendment to Loan and Security
Agreement dated November 3, 2004, and a Second Amendment to Loan and Security Agreement dated February 15, 2005, a Third Amendment to Loan and Security Agreement dated April 29, 2005, and a Fourth Amendment to Loan and Security
Agreement dated June 28, 2005 (collectively, the “Agreement”). In connection with the Agreement, Borrower and Bank entered into a LIBOR Addendum to Loan and Security Agreement dated May 14, 2004, as amended (the “LIBOR
Addendum”). The parties desire to amend the Agreement and the LIBOR Addendum in accordance with the terms of this Amendment. 
  
 NOW, THEREFORE, the parties agree as follows: 
  
 1. The last paragraph of Section 6.3 of the Agreement is hereby amended to read as follows: 
  
 Within thirty (30) days after the last day of each
month, Borrower shall deliver to Bank a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, which Compliance Certificate shall include a monthly certification by Borrower that it has an
unrestricted and unconditional right to draw down at least $25,000,000 under a Convertible Note Facility from Medicis Pharmaceutical Corporation, to provide additional liquidity if needed. 
  
 2. Section 6.8 of the Agreement is hereby amended in its entirety to
read as follows: 
  
 6.8 Financial
Covenant. Measured as of the last day of each month, the balance of Borrower’s unrestricted cash as reflected on its balance sheet shall be at least Twenty Five Million Dollars ($25,000,000). 
  
 3. The following subsection is hereby added to the end of Section 7.1 of
the Agreement, as an additional permitted Transfer: “or (v) Transfers consisting of contributions to the Rabbi Trust established in connection with the BioMarin Pharmaceutical Inc. Nonqualified Deferred Compensation Plan established on
December 1, 2005, so long as such Transfers do not exceed, in the aggregate in any given year the sum of (A) $1,000,000 plus (B) deferrals made by plan participants of compensation that would otherwise have been paid to such
participants.” 
  
 4. Exhibit A to the Agreement is
hereby amended to add the following paragraph to the end of Exhibit A as an additional exclusion from the definition of “Collateral”: 
  
 (G) Amounts held in the Rabbi Trust established in connection with the BioMarin Pharmaceutical Inc. Nonqualified Deferred Compensation
Plan established on December 1, 2005. 
  
 5. The Compliance
Certificate to be delivered after the date of this Agreement shall be in substantially the form of Exhibit C hereto. 
  
 6. The reference to “one and one half percent (1.50%)” in Section 2(a) of the LIBOR Addendum is hereby amended to read “one and one
quarter percent (1.25%)”. 








 7. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the
Agreement. The Agreement and the LIBOR Addendum, as amended hereby, shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. Except as expressly set forth herein,
the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement or the LIBOR Addendum, as in effect prior to the date hereof. Borrower
ratifies and reaffirms the continuing effectiveness of all applications, instruments, documents and agreements entered into in connection with the Agreement. 
  
 8. Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this
Amendment, and that no Event of Default has occurred and is continuing. 
  
 9. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 
  
 10. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to
Bank, the following: 
  
 (a) this Amendment, duly
executed by Borrower; 
  
 (b) an amount equal to
all Bank Expenses incurred through the date of this Amendment; and 
  
 (c) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate. 
  
 IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written. 
  

			
	 BIOMARIN PHARMACEUTICAL INC.

		
	By:	 	 /S/    JEFFREY H.
COOPER

		
	Title:	 	 Chief Financial Officer



  

			
	 COMERICA BANK

		
	By:	 	 /S/    ROBERT
WAYS

		
	Title:	 	 Vice President



  

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 EXHIBIT C 

 
 COMPLIANCE CERTIFICATE 
  

	TO:	COMERICA BANK 

  

	FROM:	BIOMARIN PHARMACEUTICAL INC. 

  
 The undersigned Responsible Officer of BIOMARIN PHARMACEUTICAL INC. hereby certifies that in accordance with 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 of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof, except for such representations and warranties which speak as to a specific date, which are true and correct as of such date.
Attached herewith are the required documents supporting the above certification. The Responsible Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from
one period to the next except as explained in an accompanying letter or footnotes. In addition, the undersigned Responsible Officer of BIOMARIN PHARMACEUTICAL INC. hereby certifies that Borrower has an unrestricted and unconditional right to draw
down at least $25,000,000 under a Convertible Note Facility from Medicis Pharmaceutical Corporation, to provide additional liquidity if needed. 
  
 Please indicate compliance status by circling Yes/No under “Complies” column. 
  

											
	 Reporting Covenant

	  	 Required

	  	 	  	Complies

	 
	 Form 10Q
	  	Filed Quarterly within 45 days	  	 	  	Yes 	 ̈	 	No 	 ̈
	 Form 10K
	  	Filed FYE within 90 days	  	 	  	Yes 	 ̈	 	No 	 ̈
				
	 Financial Covenant

	  	 Required

	  	Actual

	  	Complies

	 
					
	 Unrestricted Cash
	  	 $25,000,000
	  	$_______	  	Yes 	 ̈	 	No 	 ̈
	 Unrestricted Cash at Bank
	  	 Greater of $10,000,000 or balance of outstanding principal obligations to Bank
	  	$_______	  	Yes 	 ̈	 	No 	 ̈

  

									
	Comments Regarding Exceptions: See Attached.	 	 	 	BANK USE ONLY
				
	 	 	 	 	Received by:	 	 
	Sincerely,	 	 	 	 	 	AUTHORIZED SIGNER
					
	 	 	 	 	 	 	Date:	 	 
	 	 	 	 	 	 	 Verified:
	 	 
	SIGNATURE	 	 	 	 	 	AUTHORIZED SIGNER
					
	 	 	 	 	 	 	Date:	 	 
	TITLE	 	 	 	 	 	 
				
	 	 	 	 	 	 	Compliance
Status                                       
      Yes  ̈             No  ̈
	DATE	 	 	 	 	 	 

  

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