AMENDMENT AND WAIVER AGREEMENT
This AMENDMENT AND WAIVER AGREEMENT ("Agreement"), executed as of
December _, 2006, but effective as of December 1, 2006, is entered
into by and between TRIPOS, INC., a Utah corporation ("
Borrower "), and HORIZON TECHNOLOGY FUNDING COMPANY LLC ("
Lender ").
RECITALS
Borrower hereby stipulates, acknowledges and agrees in favor of
Lender that the following recitals are true, complete and
correct:
A. Pursuant to a certain Venture Loan and
Security Agreement, dated as of December 21, 2004 (as amended from
time to time and in effect, the " Loan Agreement ") by and
between Borrower and Lender, the Lender made a certain loan to
Borrower upon the terms and subject to the conditions set forth
therein (the " Loan "), which Loan is further evidenced by a
certain Secured Promissory Note dated as of December 21, 2004 in
the original principal amount of Three Million Five Hundred
Thousand Dollars ($3,500,000) executed by Borrower in favor of
Lender (the " Note ").
B. All Obligations (as defined in the Loan
Agreement and evidenced by the Note) of Borrower to Lender are
secured by validly perfected security interests in all assets of
Borrower.
C. Borrower hereby reaffirms its Obligations to
Lender under the Loan Agreement and agrees that it is indebted
under the Loan Agreement to Lender as of the date hereof without
defense or offset of any kind in the aggregate principal amount of
$3,088,758.25, plus interest, costs and expenses, including
attorneys' fees.
D. An "Event of Default" exists under the Loan
Agreement (the "Default") due to, among other things, Borrower's
default ("Senior Credit Default") under a certain Amended and
Restated Loan Agreement dated as of December 2, 2002 (as amended
from time to time and now in effect, "Senior Credit Agreement") by
and between Borrower and LaSalle Bank National Association ("Senior
Creditor").
E. Borrower acknowledges and agrees that:
(i) the Loan Agreement sets forth the legal, valid, binding and
continuing obligations of Borrower to Lender, (ii) all action taken
by Lender with respect to the Loan Agreement and the Collateral
have been commercially reasonable and (iii) it has no cause of
action, claim, defense or set-off against the Lender in any way
regarding or relating to the Loan Agreement or Lender's actions
thereunder and to the extent any such cause of action, claim,
defense or set-off ever existed, it is waived and Lender is
released from any claims of Borrower.
F. Borrower has now requested that Lender consent
to amending the Scheduled Payments due under the Loan Agreement and
Note and to waive the Default. Lender is willing to do so solely in
consideration for and upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Borrower and Lender hereby agree as
follows:
1. Definitions; Interpretation .
Unless otherwise defined herein, all capitalized terms used herein
and defined in the Loan Agreement shall have the respective
meanings given to those terms in the Loan Agreement. Other
rules of construction set forth in the Loan Agreement, to the
extent not inconsistent with this Agreement, apply to this
Agreement and are hereby incorporated by reference.
2. Amendments to Loan Agreement
.
(a) Borrower and Lender hereby agree that Section
2.2(a) of the Loan Agreement is hereby deleted and replaced with
the following:
(a) Scheduled
Payments . Borrower shall make payments of accrued
interest and principal on the first Business Day of each month as
set forth in the Note (collectively, the " Scheduled
Payments "). Borrower shall make such Scheduled Payments
on such dates as set forth above (each a " Payment Date
"). In any event, all unpaid principal and accrued interest
shall be due and payable in full on the Maturity Date. In the event
of a prepayment under Section 2.3(b), the Scheduled Payments shall
be adjusted and proportionately reduced so as to amortize the
remaining outstanding principal amount of the Loan in equal monthly
payments commencing August 1, 2006, if the prepayment occurs prior
to August 1, 2006 and otherwise commencing on the first business
day of the calendar month following the prepayment, and continuing
through the Maturity Date.
(b) Borrower and Lender hereby agree that Section
2.3(b) of the Loan Agreement is hereby deleted and replaced with
the following:
Optional
Prepayment . Upon ten (10) Business Days' prior written
notice to Lender, Borrower may, at its option, at any time, prepay
the Loan in whole or in part by paying to Lender an amount equal to
(i) all accrued and unpaid Scheduled Payments with respect to the
Loan due prior to the date of prepayment; (ii) any accrued and
unpaid interest, (iii) the outstanding principal balance of the
Loan, (iv) an amount equal to, five percent (5%) of the outstanding
principal amount of the Loan, and (v) all other sums, if any, that
shall have become due and payable hereunder. Except as set
forth in this Section 2.3 , the Loan may not be prepaid.
3. Amendment of Note . Borrower and
Lender hereby agree that the Note is hereby amended by deleting the
second paragraph of the Note and replacing it with the
following:
