SIXTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("Sixth
Amendment") is made and entered into as of this 5th day of
December, 2006, but effective as of December 1, 2006, by and among
TRIPOS, INC., a Utah corporation ("Tripos"), TRIPOS REALTY, LLC, a
Missouri limited liability company ("Tripos Realty;" Tripos and
Tripos Realty are sometimes collectively referred to herein as the
"Obligors"), and LASALLE BANK NATIONAL ASSOCIATION (the
"Lender").
WITNESSETH:
WHEREAS, pursuant to that certain Amended and Restated Loan
Agreement, dated as of December 2, 2002, by and among the Obligors
and Lender, Lender (i) established in favor of Tripos a revolving
line of credit initially in the amount of $6,000,000, and (ii) made
a Term Loan to Tripos in the initial amount of $4,350,000, as
amended by that certain First Amendment to Amended and Restated
Loan Agreement dated as of October 16, 2003, that certain Second
Amendment to Amended and Restated Loan Agreement dated as of April
19, 2004, that certain Third Amendment to Amended and Restated Loan
Agreement dated as of December 21, 2004, that certain Fourth
Amendment to Amended and Restated Loan Agreement dated as of April
14, 2005 and that certain Fifth Amendment to Amended and Restated
Loan Agreement dated as of April 18, 2006 (as the same may be
further amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"); and
WHEREAS, the Lender has agreed to the modification of certain
provisions contained in the Loan Agreement and certain of the other
Loan Documents upon the terms and conditions hereafter set forth;
and
WHEREAS, Obligors are in violation of Section 16.2 of the Loan
Agreement as of September 30, 2006 and, in connection therewith,
have requested that Lender waive the Event of Default arising
therefrom ("Existing Event of Default").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and for other good and
valuable consideration, the mutuality, receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Definitions . All capitalized terms not otherwise
defined herein shall have the meanings given to such terms in the
Loan Agreement.
2.
Waiver . The Lender hereby waives the Existing Event
of Default. This waiver shall not operate as a waiver of any
other rights, powers or remedies of Lender, nor constitute a future
waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered
under or in connection therewith.
3.
Amendments to Loan Agreement . The Loan Agreement is
hereby amended as of the date first written above, as follows:
(a) Section 3.1.2 (Limitation on Revolving Loan
Advances) of the Loan Agreement is hereby amended and restated to
read as follows:
"Limitation on Revolving Loan Advances.
No
Revolving Loan Advance will be made which would result in the
Revolving Loans exceeding the Maximum Available Amount and no
Revolving Loan Advance will be made on or after the Revolving Loan
Maturity Date. Lender may, however, in its absolute
discretion make Revolving Loan Advances exceeding the Maximum
Available Amount, but shall not be deemed by doing so to have
increased the Revolving Loan Commitment and shall not be obligated
to make any such Revolving Loan Advances thereafter. The
"Maximum Available Amount" on any date shall be a Dollar amount
equal to (i) the lesser of (a) the Borrowing Base minus the
sum of the aggregate amount of all outstanding LOC Obligations and
(b) the Revolving Loan Commitment on such date minus the sum
of the aggregate amount of all outstanding LOC Obligations minus
(ii) $500,000. At any time that there is an Existing
Default, the Revolving Loan Commitment may be canceled as provided
in Section 17.2 ."
(b)
Article 5 of the Loan Agreement is hereby amended by adding
a new Section 5.8 which shall read as follows:
" 5.8 Sixth Amendment Fee
Borrower
shall pay to Lender a Sixth Amendment Fee in consideration of
Lender's agreement to the terms of the Sixth Amendment (including
without limitation the waiver included therein), in the amount of
$50,000 on the effective date of the Sixth Amendment, plus ,
if any of the Loan Obligations are outstanding as of each such
date, the following additional amounts on the following dates:
February 9, 2007
|
$25,000
|
February 16, 2007
|
$25,000
|
February 23, 2007
|
$25,000
|
February 28, 2007
|
$25,000
|
(c) Section 14.16 (Review of
Accounts) of the Loan Agreement is hereby amended by adding the
following sentence to the end thereof:
"In
addition, Borrower shall deliver to Lender by no later than the
last Business Day of the following week a weekly aging report with
respect to all of its domestic and foreign Accounts as of the last
Business Day of the prior week."
(d) Article 14 of the Loan
Agreement is hereby amended by adding a new Section 14.26 to
read as follows:
"
14.26 Credit Insurance Policies.
With respect
to those Accounts that constitute Eligible Accounts because of the
existence of credit insurance policies applicable thereto, Borrower
covenants and agrees that it has taken and will continue to take
all steps necessary to remain in material compliance under such
policies, including without limitation the Atradius Policy, such as
to assure adequate insurance coverage with respect to each such
Eligible Account."
(e) A new sentence is added to the end
of Section 15.19 (Disposal of Property) of the Loan
Agreement as follows:
"In
addition, in the absence of an Existing Default, Tripos Realty may
sell the Mortgaged Property provided that the proceeds (less
commissions and other reasonable costs and expenses directly
associated with such sale) from such sale are applied directly to
pay off the Term Loan and pay down the Revolving Loans."
(f) Section 16.2 (Minimum Net
Worth) is hereby deleted in its entirety.
(g)
Section 16.3 (Minimum Liquidity) is hereby deleted in its
entirety.
(h)
Article 17 of the Loan Agreement is hereby amended by adding
a new Section 17.1.19 to read as follows:
"
17.1.19
Credit Insurance.
The
cancellation of, or any assignment or attempted assignment of
(other than to Lender), or any change in loss payee designation
under, any credit insurance policy covering Eligible Accounts
including without limitation the Atradius Policy."
(i) The definition of
"Revolving Loan Maturity Date" contained on Exhibit 2.1
(Glossary and Index of Defined Terms) is hereby amended by deleting
the reference to "January 1, 2007" and substituting in lieu thereof
the date "February 28, 2007".
(j) The definition of
"Term Loan Maturity Date" contained on Exhibit 2.1 (Glossary
and Index of Defined Terms) is hereby amended by deleting the
reference to "April 18, 2008" and substituting in lieu thereof
"February 28, 2007."
(k) Exhibit 2.1 (Glossary and
Index of Defined Terms) to the Loan Agreement is hereby amended by
adding in proper alphabetical order the following definitions:
"
Atradius Policy " - shall mean that certain credit insurance
policy (number 747324) issued by Atradius Trade Credit Insurance,
Inc. in favor of Bor
