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EXHIBIT 10.3
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT dated as of April 16, 1997,
between Harbinger Corporation, a Georgia corporation, f/k/a Harbinger*EDI
Services, (the "Company") and NationsBank, N.A. (South), successor by name
change to NationsBank of Georgia, N.A. (the "Bank").
RECITALS
The Company and the Bank have entered into a Loan Agreement dated as of
August 15, 1994 (the "Agreement") pursuant to which the Bank made a loan to the
Company as amended by that certain First Amendment to Loan Agreement dated as
of May 2, 1995 (as amended, the "Loan").
The Company and the Bank wish to amend certain terms of the Agreement as
herein provided.
NOW THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms
defined in the Agreement shall have the same meanings when used herein.
Section 2. Amendments. Effective as provided in Section 3 hereof
and subject to the provisions of Section 3 hereof, the Agreement is hereby
amended as follows:
(a) Paragraph 2 shall be deleted in its entirety with the
following being substituted in lieu thereof.
"A. LOAN. Bank hereby agrees to make loans to the Company in the
aggregate principal amount of up to $10,000,000 to be evidenced by certain
promissory notes (the promissory notes and any and all renewals,
extensions or rearrangements thereof being hereinafter referred to
collectively as "the Notes") dated as of the dates and in the amounts set
forth on the Note and having maturity dates, repayments terms and interest
rates as set forth in the Notes.
The Loan provides for a revolving line of credit (the "Line") under which
the Company may from time to time borrow, repay and reborrow funds. The
Line is subject to the Borrowing Base Agreement attached hereto as Exhibit
"A" and by reference made a part hereof.
B. USAGE FEE. Borrower will pay hereafter on September 30, 1994
and on the last day of each month for the period from and including the
closing date to and including April 2, 1997, a usage fee at a rate per
annum of 25% of 1% of the average daily unused portion of the Line during
such period. Borrower will pay hereafter on May 2, 1997 and on the same
day of each successive month through and including May 2, 1998 a usage fee
at a rate per annum of 3/8ths of 1% of the average daily unused portion of
the Line during such period.
(b) Exhibit "A" shall be replaced in its entirety with the
attached Exhibit "A".
Section 3. Effective Date. The amendments to the Agreement set
forth in Section 2 hereof shall be effective and binding on all the parties on
and as of April 16, 1997 (or such later date as all the parties hereto may
agree) (the "Effective Date"), provided that all the following conditions
precedent have been satisfied on such date:
(a) The Bank shall have received one or more counterparts of this
Second Amendment executed by each of the parties hereto.
(b) All legal matters incident to this Second Amendment shall be
satisfactory to counsel for the Bank.
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(c) No Default shall have occurred and be continuing, and the
representations of the Company in Section 4 hereof shall be true on and as of
the Effective Date with the same force and effect as if made on and as of the
Effective Date; and no lawsuit or proceeding shall be pending (or, to the
knowledge of the Company, threatened) against the Company or any of its
Consolidated Subsidiaries which is likely to have a material adverse effect
upon the consolidated financial condition of the Company and its Consolidated
Subsidiaries or upon the ability of the Company to carry out the transactions
contemplated by this Second Amendment and the Agreement as amended hereby.
(d) The Bank shall have received certified copies of all
corporate action taken by the Company to authorize the execution, delivery and
performance of this Second Amendment and the Agreement as amended hereby, and
the borrowings under the Agreement as amended hereby, and such other documents
as Bank's counsel shall reasonably require.
Section 4. Representations, Etc. The Company represents
covenants and warrants to the Bank that: (i) as of the date hereof no Default
has occurred and is continuing; and (ii) the representations and warranties
contained in Paragraph 3 of the Agreement as amended hereby, with each
reference in such Paragraph 3 to "this Agreement", "hereto", "hereof" and terms
of similar import taken as a reference to the Agreement as amended hereby.
Section 5. Agreement.
(a) Except as specifically amended hereby, the Agreement shall
remain unchanged and continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. From and after the
Effective Date, (i) each reference in the Agreement (including all Exhibits and
Schedules thereto) to "this Agreement," "hereto," "hereof" and terms of similar
import taken as a reference to the Agreement and all references to the
Agreement in any documents, instruments, certificates, notes, bonds or other
agreements executed in connection therewith shall be deemed to refer to the
Agreement as amended hereby.
(b) The Company agrees that all collateral given as security for
the Agreement secures, and shall continue to secure, the Agreement, as amended
hereby.
(c) The Company waives and releases the Bank from any and all
claims and defenses with respect to the Agreement, and any and all documents,
instruments, certificates, notes, bonds or other agreements executed in
connection therewith.
(d) This Second Amendment (i) is limited precisely as specified
herein and does not constitute nor shall be deemed to constitute a
modification, acceptance or waiver of any other provision of the Agreement, or
any documents, instruments, certificate, notes, bonds or agreements delivered
in connection therewith and (ii) shall not prejudice or be deemed to prejudice
any right(s) the Bank may now have or may in the future have under or in
connection with the Agreement, or any documents, instruments, certificates,
notes, bonds or agreements executed in connection therewith.
Section 6. Applicable Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Georgia.
Section 7. Expenses. The Company will pay: (i) all out-of-pocket
expenses of the Bank in connection with the preparation, execution and delivery
of this Second Amendment; (ii) the reasonable fees of counsel to the Bank,
including the allocated cost of in- house counsel; and (iii) all taxes, if any,
upon any documents or transactions pursuant to this Second Amendment.
Section 8. Counterparts. This Second Amendment may be executed
in any number of counterparts, all of which taken together will constitute one
agreement, and any of the parties hereto may execute this Second Amendment by
signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed as of the day and year first above written.
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Harbinger Corporation, f/k/a
Harbinger*EDI Services
By: /s/ Xxxx X. Xxxx
_____________________________
Title: CFO
__________________________
Attest: /s/ Xxxxx X. Xxxxxxxx
_________________________
[CORPORATE SEAL]
NationsBank, N.A. (South)
By: /s/ Xxxxxxx X. Xxxxxxx
_____________________________
Name/Title: Xxxxxxx X. Xxxxxxx, AVP
_________________________
