Exhibit 10.3
Note Modification Agreement
This agreement is dated as of February 5, 2007 (the "Agreement Date"), by and
between SHARPS COMPLIANCE CORP. (the "Borrower") and JPMorgan Chase Bank, N.A.
(the "Bank"). The provisions of this agreement are effective on the date that
this agreement has been executed by all of the signers and delivered to the Bank
(the "Effective Date").
WHEREAS, the Borrower executed a Line of Credit Note as evidence of indebtedness
in the original face amount of One Million Five Hundred Thousand and 00/100
Dollars ($1,500,000.00), dated March 27, 2006 owing by the Borrower to the Bank,
as same may have been amended or modified from time to time (the "Note"), which
Note has at all times been, and is now, continuously and without interruption
outstanding in favor of the Bank; and,
WHEREAS, the Borrower has requested and the Bank has agreed that the Note be
modified to the limited extent as hereinafter set forth;
NOW THEREFORE, in mutual consideration of the agreements contained herein and
for other good and valuable consideration, the parties agree as follows:
1. ACCURACY OF RECITALS. The Borrower acknowledges the accuracy of the
Recitals stated above.
2. MODIFICATION OF NOTE.
2.1 From and after the Effective Date, the provision in the Note captioned
"Promise to Pay" is hereby amended and restated to read as follows:
Promise to Pay. On or before March 27, 2009, for value received, SHARPS
COMPLIANCE CORP. (the "Borrower") promises to pay to JPMorgan Chase
Bank, N.A., whose address is ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "Bank") or order, in lawful money of the United States of America,
the sum of Two Million Five Hundred Thousand and 00/100 ($2,500,000.00)
or such lesser sum as is indicated on Bank records, plus interest as
provided below.
2.2 Each of the Related Documents is modified to provide that it shall be a
default or an event of default thereunder if the Borrower shall fail to comply
with any of the covenants of the Borrower herein or if any representation or
warranty by the Borrower herein or by any guarantor in any Related Documents is
materially incomplete, incorrect, or misleading as of the date hereof. As used
in this agreement, the "Related Documents" shall include the Note and all loan
agreements, credit agreements, reimbursement agreements, security agreements,
mortgages, deeds of trust, pledge agreements, assignments, guaranties, or any
other instrument or document executed in connection with the Note or in
connection with any other obligations of the Borrower to the Bank.
2.3 Each reference in the Related Documents to any of the Related Documents
shall be a reference to such document as modified herein.
3. RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL. The Related Documents are
ratified and reaffirmed by the Borrower and shall remain in full force and
effect as they may be modified herein. All real or personal property described
as security in the Related Documents shall remain as security for the Note and
the obligations of the Borrower in the Related Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Bank that each of the following representations and warranties made in
the Note and Related Documents are true and will remain true until maturity of
the Note, termination of the other Related Documents and payment and performance
in full of all liabilities, obligations and debt evidenced by the Note and other
Related Documents:
4.1 No default or event of default under any of the Related Documents as
modified hereby, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Related
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the business, assets,
affairs, prospects or financial condition of the Borrower or any Guarantor or
any subsidiary of the Borrower.
4.3 Each and all representations and warranties of the Borrower in the
Related Documents are accurate on the date hereof.
4.4 The Borrower has no claims, counterclaims, defenses, or setoffs with
respect to the loan evidenced by the Note or with respect to the Related
Documents as modified herein.
4.5 The Note and the Related Documents as modified herein are the legal,
valid, and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their terms.
4.6 The Borrower, other than any Borrower who is a natural person, is
validly existing under the laws of the State of its formation or organization.
The Borrower has the requisite power and authority to execute and deliver this
agreement and to perform the obligations described in the Related Documents as
modified herein. The execution and delivery of this agreement and the
performance of the obligations described in the Related Documents as modified
herein have been duly authorized by all requisite action by or on behalf of the
Borrower. This agreement has been duly executed and delivered by or on behalf of
the Borrower.
5. BORROWER COVENANTS. The Borrower covenants with the Bank:
5.1 The Borrower shall execute, deliver, and provide to the Bank such
additional agreements, documents, and instruments as reasonably required by the
Bank to effectuate the intent of this agreement.
5.2 The Borrower fully, finally, and forever releases and discharges the
Bank and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all causes of action, claims, debts, demands, and
liabilities, of whatever kind or nature, in law or equity, of the Borrower,
whether now known or unknown to the Borrower, (i) in respect of the loan
evidenced by the Note and the Related Documents, or of the actions or omissions
of the Bank in any manner related to the loan evidenced by the Note or the
Related Documents and (ii) arising from events occurring prior to the date of
this agreement ("Claims"); provided, however, that the foregoing RELEASE SHALL
INCLUDE ALL CLAIMS ARISING OUT OF THE NEGLIGENCE OF ANY BANK PARTY, but not the
gross negligence or willful misconduct of any Bank Party.
5.3 The Borrower shall pay to the Bank:
5.3.1 All the internal and external costs and expenses incurred (or
charged by internal allocation) by the Bank in connection with this agreement
(including, without limitation, inside and outside attorneys, appraisal,
appraisal review, processing, title, filing, and recording costs, expenses, and
fees).
6. EXECUTION AND DELIVERY OF AGREEMENT BY THE BANK. The Bank shall not be bound
by this agreement until (i) the Bank has executed this agreement and (ii) the
Borrower performed all of the obligations of the Borrower under this agreement
to be performed contemporaneously with the execution and delivery of this
agreement.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The
Note and the Related Documents as modified herein contain the complete
understanding and agreement of the Borrower and the Bank in respect of the loan
and supersede all prior representations, warranties, agreements, arrangements,
understandings, and negotiations. No provision of the Note or the Related
Documents as modified herein may be changed, discharged, supplemented,
terminated, or waived except in a writing signed by the party against whom it is
being enforced.
8. GOVERNING LAW AND VENUE. This agreement shall be governed by and construed in
accordance with the laws of the State of Texas (without giving effect to its
laws of conflicts). The Borrower agrees that any legal action or proceeding with
respect to any of its obligations under the Note or this agreement may be
brought by the Bank in any state or federal court located in the State of Texas,
as the Bank in its sole discretion may elect. By the execution and delivery of
this agreement, the Borrower submits to and accepts, for itself and in respect
of its property, generally and unconditionally, the non-exclusive jurisdiction
of those courts. The Borrower waives any claim that the State of Texas is not a
convenient forum or the proper venue for any such suit, action or proceeding.
This agreement binds the Borrower and its successors, and benefits the Bank, its
successors and assigns. The Borrower shall not, however, have the right to
assign the Borrower's rights under this agreement or any interest therein,
without the prior written consent of the Bank.
9. COUNTERPART EXECUTION. This agreement may be executed in multiple
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts, taken together, shall constitute one and the same
agreement.
10. NOT A NOVATION. This agreement is a modification only and not a novation. In
addition to all amounts hereafter due under the Note and the Related Documents
as they may be modified herein, all accrued interest evidenced by the Note being
modified by this agreement and all accrued amounts due and payable under the
Related Documents shall continue to be due and payable until paid. Except for
the above-quoted modification(s), the Note, any Related Documents, and all the
terms and conditions thereof, shall be and remain in full force and effect with
the changes herein deemed to be incorporated therein. This agreement is to be
considered attached to the Note and made a part thereof. This agreement shall
not release or affect the liability of any guarantor, surety or endorser of the
Note or release any owner of collateral securing the Note. The validity,
priority and enforceability of the Note shall not be impaired hereby. References
to the Related Documents and to other agreements shall not affect or impair the
absolute and unconditional obligation of the Borrower to pay the principal and
interest on the Note when due. The Bank reserves all rights against all parties
to the Note.
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THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Borrower:
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ SHARPS COMPLIANCE CORP.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇ Executive Vice
President and CFO
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Printed Name Title
Date Signed:
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BANK'S ACCEPTANCE
The foregoing agreement is hereby agreed to and acknowledged.
Bank:
JPMorgan Chase Bank, N.A.
By:
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Printed Name Title
Date Signed:
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006136253000