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EXHIBIT 10.26
FIFTH AMENDMENT TO LOAN AGREEMENT AND WAIVER
This Fifth Amendment to Loan Agreement is made by and among BROADWAY &
SEYMOUR, INC., a Delaware corporation ("Broadway") with a principal place of
business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, ELITE
INFORMATION SYSTEMS, INC., a California corporation ("Elite") with a principal
place of business at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, THE MINICOMPUTER COMPANY OF MARYLAND, INC., a Maryland
corporation ("TMC") with a principal place of business at Executive Plaza I,
00000 XxXxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000-0000, ELITE INFORMATION
SYSTEMS INTERNATIONAL, INC., a California corporation ("Elite International")
with a principal place of business at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 (Broadway, Elite, TMC and Elite International are
hereinafter jointly and severally referred to as, the "Borrower") and FLEET
NATIONAL BANK, a national banking association organized under the laws of the
United States and having an office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 as Agent for itself and each of the other Lenders who now and/or hereafter
become parties to the hereinafter defined Loan Agreement pursuant to the terms
of Section 9.11 thereof (sometimes the "Agent" and sometimes "Fleet" and in its
capacity as a Lender, sometimes "Fleet" and sometimes a "Lender"). Capitalized
terms used herein and not expressly defined herein shall have the respective
meanings ascribed to such terms in the hereinafter defined Loan Agreement.
WITNESSETH THAT:
WHEREAS, the Borrower and the Agent are parties to that certain Loan
Agreement dated as of July 23, 1997 pursuant to which the Lenders extended a
$15,000,000 revolving credit facility, as amended by that certain First
Amendment to Loan Agreement dated September 30, 1997, as further amended by that
certain Second Amendment to Loan Agreement dated February , 1998, effective as
of December 31, 1997, as further amended by that certain Third Amendment to Loan
Agreement dated May 5, 1998, effective as of March 31, 1998 and as further
amended by that certain Fourth Amendment to Loan Agreement dated August 7, 1998
(as amended hereby and as hereafter amended from time to time, the "Loan
Agreement"); and
WHEREAS, the Borrower and the Agent desire to amend a certain provision
of the Loan Agreement and waive Borrower's compliance therewith at December 31,
1998 as hereinafter set forth.
NOW, THEREFORE, the Borrower and the Agent hereby agree as follows:
1. All references in the Loan Agreement to the Financing Documents
shall be deemed to refer to such documents and in addition shall also refer to
this Fifth Amendment to Loan Agreement.
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2. Effective as of December 31, 1998, Section 5.1.10 of the Loan
Agreement is hereby deleted in its entirety and the following shall be
substituted in lieu thereof:
"Section 5.1.10. Minimum Consolidated Tangible Net
Worth. Maintain a Consolidated Tangible Net Worth in an amount
not less the sum of (i) $15,000,000, plus (ii) eighty-five
percent (85%) of Adjusted Net Income for the period beginning
as of the Closing Date without any reduction for losses, plus
(iii) eighty-five percent (85%) of the gross proceeds of an
offering or sale of a security, note or other instrument of
the Borrower or any Subsidiaries after the Closing Date, to be
measured at each Borrower fiscal quarter end on a cumulative
basis from the Closing Date."
3. (a) The Borrower has informed the Agent of its failure to comply
with Section 5.1.10 of the Agreement. Specifically, the Borrower has informed
the Agent that it was unable to meet its obligation to maintain Minimum
Consolidated Tangible Net Worth as required in such section of the Agreement for
the Borrower fiscal quarter ending December 31, 1998.
(b) In reliance on the accuracy of the Borrower's representation
referred to above and upon the verbal representations of the Borrower that no
Default or Event of Default (other than the Event of Default resulting from the
Borrower's failure to comply with Section 5.1.10 of the Agreement) exists under
the Agreement, Fleet hereby waives the Borrower's compliance with Section 5.1.10
of the Agreement for the Borrower fiscal quarter ended December 31, 1998. This
waiver is strictly limited to the Borrower's failure to meet its Minimum
Consolidated Tangible Net Worth obligation described above and is not, nor shall
it be construed as, a waiver of any other Default or Event of Default under the
Agreement, now existing or hereafter occurring.
4. The Borrower hereby restates all of the representations, warranties
and covenants (as amended hereby) of the Borrower set forth in the Loan
Agreement to the same extent as if fully set forth herein and the Borrower
hereby certifies that all such representations and warranties are true and
accurate and Borrower is in compliance with all such covenants as of the date
hereof.
5. The Borrower and the Agent hereby ratify, confirm and approve the
Loan Agreement, amended as set forth herein, as a binding obligation,
enforceable in accordance with its terms. The Borrower further acknowledges and
agrees that Agent has not waived any of its rights under the Loan Agreement,
amended as set forth herein, or any Event(s) of Default that may hereafter exist
thereunder and that there does not exist (i) any offset or defense against
payment or performance of any of the Indebtedness and Obligations of the
Borrower evidenced thereby, or (ii) any claim or cause of action by Borrower
against Agent with respect to the transactions described therein.
6. The Borrower represents and warrants to the Agent that no Default or
Event of Default exists under the Loan Agreement, amended as set forth herein,
any of the Financing Documents or any document or agreement executed in
connection therewith or herewith.
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7. This Fifth Amendment to Loan Agreement shall be effective as of
December 31, 1998.
IN WITNESS WHEREOF, the Borrower and the Agent have caused this Fourth
Amendment to Loan Agreement to be executed as a sealed instrument by their
proper representatives hereunto duly authorized as of the 19th day of February,
1999.
Witness: Broadway & Seymour, Inc.
/s/ Xxxxxxx X. Tune By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Treasurer
Witness: Elite Information Systems, Inc.
/s/ Xxxxxxx X. Tune By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Assistant Treasurer
Witness: The MiniComputer Company of Maryland,
Inc.
/s/ Xxxxxxx X. Tune By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Treasurer
Witness: Elite Information Systems International, Inc.
/s/ Xxxxxxx X. Tune By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Treasurer
Witness: Fleet National Bank, as Agent for the
Lenders and as a Lender
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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