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.
9.
FEES.
BORROWER SHALL PAY TO BANK A
MODIFICATION FEE IN THE AMOUNT OF $12,500.00, WHICH FEE SHALL BE (I) DEEMED
FULLY EARNED AS OF THE DATE HEREOF, (II) PAYABLE ON THE DATE WHICH IS ONE YEAR
FROM THE DATE OF THIS LOAN MODIFICATION AGREEMENT, AND (III) 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.
10.
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.
11.
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 CLARA
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.
[The remainder of this page is intentionally left blank]
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/ Nancy C. Broadbent