$14,000,000.00
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
originally dated as of September 11, 2000
by and among
THE TRIZETTO GROUP, INC.
CREATIVE BUSINESS SOLUTIONS, INC.
FINSERV HEALTH CARE SYSTEMS, INC.
HEALTHCARE MEDIA ENTERPRISES, INC.
HEALTHWEB, INC.
MARGOLIS HEALTH ENTERPRISES, INC.
NOVALIS CORPORATION
TRIZETTO APPLICATION SERVICES, INC.
DIGITAL INSURANCE SYSTEMS CORPORATION
HEALTH NETWORKS OF AMERICA, INC.
NOVALIS DEVELOPMENT CORPORATION
NOVALIS DEVELOPMENT & LICENSING CORPORATION
NOVALIS SERVICES CORPORATION
ERISCO, INC.
RESOURCE INFORMATION MANAGEMENT SYSTEMS, INC.
WINTHROP FINANCIAL GROUP, INC.
OPTION SERVICES GROUP, INC.
INFOTRUST COMPANY
(collectively, "Borrower")
and
HELLER HEALTHCARE FINANCE, INC.
("Lender")
Amended as of September 20, 2001
AMENDMENT NO.3 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO.3 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made as of this 20th day of September, 2001, by and among THE TRIZETTO GROUP,
INC., a Delaware corporation ("TriZetto"), CREATIVE BUSINESS SOLUTIONS, INC., a
Texas corporation ("CBS"); FINSERV HEALTH CARE SYSTEMS, INC., a New York
corporation ("Finserv"); HEALTHCARE MEDIA ENTERPRISES, INC., a Delaware
corporation ("HME"); HEALTHWEB, INC., a Delaware corporation ("HealthWeb");
MARGOLIS HEALTH ENTERPRISES, INC., a California corporation ("Margolis");
NOVALIS CORPORATION, a Delaware corporation ("Novalis"); TRIZETTO APPLICATION
SERVICES, Inc., a Colorado corporation ("TriZetto Application"); DIGITAL
INSURANCE SYSTEMS CORPORATION, an Ohio corporation ("Digital"); HEALTH NETWORKS
OF AMERICA, INC., a Maryland corporation ("Health Networks"); NOVALIS
DEVELOPMENT CORPORATION, a Delaware corporation ("Novalis Development"); NOVALIS
DEVELOPMENT & LICENSING CORPORATION, an Indiana corporation ("Novalis
Licensing"); NOVALIS SERVICES CORPORATION, a Delaware corporation ("Novalis
Services" and, collectively with TriZetto, CBS, Finserv, HME, HealthWeb,
Margolis, Novalis, TriZetto Application, Digital, Health Networks, Novalis
Development and Novalis Licensing, the "Original Borrower"), ERISCO, INC., a New
York corporation ("Erisco"), RESOURCE INFORMATION MANAGEMENT SYSTEMS, INC., an
Illinois corporation ("RIMS"), WINTHROP FINANCIAL GROUP, INC., an Illinois
corporation ("Winthrop"), OPTION SERVICES GROUP, INC., an Illinois corporation
("Option Services", and collectively with Erisco, RIMS and Winthrop, the
"Additional Borrower"), INFOTRUST COMPANY, an Illinois corporation ("New
Borrower" and, collectively with the Original Borrower and the Additional
Borrower, the "Borrower"), and HELLER HEALTHCARE FINANCE, INC., a Delaware
corporation ("Lender").
RECITALS
WHEREAS, pursuant to that certain Loan and Security Agreement dated
September 11, 2000, by and between Original Borrower, Elbejay Acquisition Corp.,
a Delaware corporation ("LBJ"), Healthcare Media Private Limited, an India
company and subsidiary of HME ("HMP") and Lender (the "Original Loan Agreement",
as previously amended by that certain Amendment No. 1 to Loan and Security
Agreement dated as of October 17, 2000, by that certain Amendment No. 2 to Loan
and Security Agreement dated as of December 28, 2000, as amended hereby and as
it may be further amended, modified and restated from time to time, the "Loan
Agreement"), Lender agreed to make available to Original Borrower, LBJ and HMP a
revolving credit facility;
WHEREAS, Borrower has acquired all of the assets and business of New
Borrower and desires, among other things, to add the accounts of New Borrower to
the Borrowing Base (as defined in the Loan Agreement; and
WHEREAS, Lender and Borrower believe it is in their mutual best
interests that, among other things, (a) the accounts of New Borrower be added to
the Borrowing Base (as defined in the
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Loan Agreement), (b) New Borrower be added as a Borrower under the Loan
Agreement pursuant to Section 2 herein and (c) the Loan Agreement be otherwise
modified as provided herein.
NOW, THEREFORE, in consideration of the foregoing, the terms and
conditions set forth in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined in this Amendment, all
capitalized terms shall have the meanings assigned to such terms in the Loan
Agreement.
SECTION 2. ADDITION OF NEW BORROWER. Original Borrower, Additional
Borrower, New Borrower and Lender agree that, upon satisfaction of the
conditions set forth in this Amendment, New Borrower shall constitute a
"Borrower" for purposes of and as defined in the Loan Agreement and the other
Loan Documents. Accordingly, New Borrower hereby agrees to be bound by all of
the conditions, covenants, representations, warranties, and other agreements set
forth in the Loan Agreement, and hereby agrees to promptly execute all further
documentation required by Lender to be executed by New Borrower, consistent with
the terms of this Amendment, the Loan Agreement and the other Loan Documents.
SECTION 3. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each entity
comprising Borrower, including without limitation New Borrower, hereby (a)
confirms that all of the representations and warranties set forth in Article IV
of the Loan Agreement are true and correct with respect to such Borrower, and
(b) specifically represents and warrants to Lender that it has good and
marketable title to all of its respective Collateral, free and clear of any lien
or security interest in favor of any other person or entity other than Permitted
Liens.
SECTION 4. GRANT BY NEW BORROWER OF SECURITY INTEREST.
(a) Pursuant to and in accordance with the terms of Article III of
the Loan Agreement (as amended hereby), and consistent with the intent of the
parties, as security for the payment of the Obligations of Borrower, including
without limitation New Borrower, to Lender, New Borrower hereby assigns and
grants to Lender a continuing first priority lien on and security interest in,
on and to the following property of New Borrower, all of which property shall,
in the aggregate, be deemed to be and treated for all purposes as "Collateral"
under the Loan Agreement, as follows:
(i) all of Borrower's now-owned and hereafter acquired or
arising Accounts, accounts receivable and rights to payment of every
kind and description, and all of Borrower's contract rights, chattel
paper, documents and instruments with respect thereto, and all of
Borrower's rights, remedies, security and liens, in, to and in respect
of the Accounts, including, without limitation, rights of stoppage in
transit, replevin, repossession and reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, guaranties or
other contracts of suretyship with respect to the Accounts, deposits or
other security for the obligation of any Account Debtor, and credit and
other insurance;
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(ii) all moneys, securities and other property and the proceeds
thereof, now or hereafter held or received by, in transit to, in
possession of, or under the control of Lender or a bailee or Affiliate
of Lender, from or for Borrower, whether for safekeeping, pledge,
custody, transmission, collection or otherwise, and all of Borrower's
deposits (general or special), balances, sums and credits with Lender at
any time existing;
(iii) all of Borrower's right, title and interest in, to and in
respect of all goods relating to, or which by sale have resulted in,
Accounts, including, without limitation, all goods described in invoices
or other documents or instruments with respect to, or otherwise
representing or evidencing, any Account, and all returned, reclaimed or
repossessed goods;
(iv) all of Borrower's now owned or hereafter acquired deposit
accounts into which Accounts are deposited, including the Lockbox
Account;
(v) all of Borrower's now owned and hereafter acquired or
arising general intangibles and other property of every kind and
description with respect to, evidencing or relating to its Accounts,
accounts receivable and other rights to payment, including, but not
limited to, all existing and future customer lists, choses in action,
claims, books, records, ledger cards, contracts, licenses, formulae, tax
and other types of refunds, returned and unearned insurance premiums,
rights and claims under insurance policies, and computer programs,
information, software, records, and data, as the same relates to the
Accounts;
(vi) the proceeds (including, without limitation, insurance
proceeds) of all of the foregoing.
(b) On the execution of this Amendment by the parties and thereafter
as Lender deems necessary in its sole discretion, New Borrower shall execute and
deliver any other agreements, documents, instruments and writings deemed
necessary by Lender, or as Lender may otherwise request from time to time in its
sole discretion to evidence, perfect or protect Lender's lien and security
interest in the Collateral under this Amendment, the Loan Agreement or the other
Loan Documents.
(c) Prior to the execution hereof, and thereafter (as and when
determined by Lender in its reasonable discretion), Lender will perform the
searches described in clauses (i) and (ii) below against New Borrower (the
results of which are to be consistent with New Borrower's representations and
warranties under this Amendment and the Loan Agreement), all at Borrower's
expense:
(i) Uniform Commercial Code searches with the Secretary of
State and local filing offices of each jurisdiction where New Borrower
maintains its executive offices, a place of business or assets; and
(ii) judgment, federal tax lien and corporate and partnership
tax lien searches, in each jurisdiction searched under clause (i) above;
and
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In addition, prior to the execution hereof, at Borrower's expense, New
Borrower shall obtain and deliver to Lender good standing certificates showing
New Borrower to be in good standing in its state of incorporation and in each
other state in which it is doing and currently intends to do business for which
qualification is required, except for such locations (not including New
Borrower's state of incorporation) where failure to be so qualified could not
have a Material Adverse Effect.
(d) With respect to the Collateral pledged to Lender pursuant to
Section 4(a) of this Amendment, Borrower, including without limitation New
Borrower, hereby agrees to abide by the covenants and agreements set forth in
Section 3.3, Section 3.4 and Section 3.6 of the Loan Agreement.
SECTION 5. AMENDMENT TO LOAN AGREEMENT.
(a) Section 1.5 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 1.5 BASE RATE. "Base Rate" means a rate of interest
equal to one percent (1%) above the "Prime Rate of Interest".
(b) Section 1.31(a)(i) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(i) has or is reasonably expected to have a material
adverse effect on the business, operations, condition (financial or
otherwise), assets, liabilities or properties of Borrower, taken as a
whole;"
(c) Section 1.46 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 1.46 TERMINATION FEE. "Termination Fee" shall mean a fee
payable upon termination of the Agreement, as yield maintenance for the
loss of bargain and not as a penalty, equal to (a) if the effective date
of termination is on or before the first anniversary of the initial
Closing Date hereunder, the greater of (i) three percent (3%) of the
Maximum Loan Amount and (ii) the Yield Maintenance Amount, (b) if the
effective date of termination is after the first anniversary of the
initial Closing Date hereunder but before the second anniversary of the
initial Closing Date hereunder, the greater of (i) two percent (2%) of
the Maximum Loan Amount and (ii) the Yield Maintenance Amount, and (c)
if the effective date of termination is after the second anniversary of
the initial Closing date hereunder but before March 31, 2004, the
greater of (i) one percent (1%) of the Maximum Loan Amount and (ii) the
Yield Maintenance Amount."
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(d) Section 2.1 of the Loan Agreement is hereby modified as follows:
(i) Section 2.1(a) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) The maximum aggregate principal amount of credit
extended by Lender to Borrower under this Agreement (the "Loan") that
will be outstanding at any time is Fourteen Million and No/100 Dollars
($14,000,000.00) (the "Maximum Loan Amount"). The parties hereto shall
negotiate in good faith to increase the Maximum Loan Amount if the
Borrowing Base exceeds the Maximum Loan Amount then in effect;
provided, however, that any increase in the Maximum Loan Amount shall
be subject, in all cases, to the approval of Lender's credit committee,
acting in its sole and absolute discretion."
(ii) Section 2.1(b) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"The Loan shall be in the nature of a revolving line of credit
and shall include sums advanced and other credit extended by Lender to
or for the benefit of Borrower from time to time under this Article II
(each, a "Revolving Credit Loan") up to the Maximum Loan Amount
depending upon the availability in the Borrowing Base, the requests of
Borrower pursuant to the terms and conditions of Section 2.2, and on
such other basis as Lender may reasonably determine. The outstanding
principal balance of the Loan may fluctuate from time to time, to be
reduced by repayments made by Borrower (which may be made without
penalty or premium), and to be increased by future Revolving Credit
Loans, advances and other extensions of credit to or for the benefit of
Borrower, and shall be due and payable in full upon the expiration of
the Term; provided that, notwithstanding the foregoing or anything else
to the contrary herein, so long as there is no Event of Default
occurring or continuing hereunder, Borrower shall be entitled (although
it shall not be required) to maintain an outstanding principal balance
under the Loan equal to $6,000,000 at any time, and provided that there
is no Event of Default occurring or continuing hereunder, Borrower shall
not be required (although it shall be entitled) to make repayments of
the Loan to reduce the outstanding principal balance under the Loan to
less than such amount. For purposes of this Agreement, any determination
as to whether there is availability within the Borrowing Base for
advances or extensions of credit shall be made by Lender in its sole
discretion and is final and binding upon Borrower."
(e) Section 2.4(c) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
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"(c) For so long as the Loan is available to Borrower, Borrower
unconditionally shall pay to Lender a monthly loan management fee (the
"Loan Management Fee") equal to 0.042% of the average amount of the
outstanding principal balance of the Revolving Credit Loans during the
preceding month. The Loan Management Fee shall be payable monthly in
arrears on the first day of each successive calendar month."
(f) Section 2.8(a) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) Subject to Lender's right to cease making Revolving Credit
Loans to Borrower upon or after any Event of Default, this Agreement
shall be in effect until March 31, 2004, unless terminated as provided
in this Section 2.8 (the "Term"), and this Agreement shall be renewed
for one-year periods thereafter only upon the mutual written agreement
of the parties."
(g) Section 3.1 of the Loan Agreement is hereby modified by (i)
deleting the ", and" at the end of subsection (ii) thereof, and (ii) adding a
new subsection (iv) at the end of subsection (iii) as follows:
"and (iv) the payment and performance of the obligations of
Borrower under that certain Secured Term Note in the aggregate principal
amount of Six Million and No/100 Dollars ($6,000,000.00) dated September
14, 2001 and made by Borrower in favor of Lender (the "Secured Term
Note")"
(h) Section 6.10 of the Loan Agreement is hereby modified as follows:
(i) Section 6.10(iv) is hereby modified by substituting
"$500,000" for the figure "$250,000" appearing therein.
(ii) Section 6.10(v) is hereby modified by substituting
"$200,000" for the figure "$100,000" appearing therein.
(i) Section 6.17 of the Loan Agreement is hereby modified by
substituting "$500,000" for the figure "$250,000.00" appearing therein.
(j) Section 6.23 of the Loan Agreement is hereby modified by deleting
the first sentence thereof and replacing it with the following:
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"TriZetto will not at any time allow its "tangible net worth" to
fall below $12,000,000. For purposes of this Section 6.23, "tangible net
worth" shall be defined as TriZetto's net worth, on a consolidated
basis, minus all intangibles, including without limitation good will, in
each case calculated in accordance with GAAP; provided that, for
purposes of calculating "tangible net worth", TriZetto shall be entitled
to include deferred tax liability associated with any intangibles
generated from acquisitions made by it."
(k) Section 7.1 of the Loan Agreement is hereby modified by (i)
deleting the "." at the end of subsection (iv) thereof, and (ii) adding a new
subsection (v) at the end of subsection (iv) as follows:
"and (v) the indebtedness set forth in Schedule 7.1(v)."
(l) Section 7.4 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 7.4. RESTRICTION ON FUNDAMENTAL CHANGES; NO CHANGE IN
OPERATION OR CONTROL. Borrower will not: (i) enter into any transaction
of merger or consolidation except as set forth on Schedule 7.4 hereof;
(ii) liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution); (iii) convey, sell, lease, sublease (other than the
subleases currently in existence as reflected on Borrower's financial
statements), transfer or otherwise dispose of, in one transaction or a
series of transactions, any of its assets, or the capital stock of any
subsidiary of Borrower, whether now owned or hereafter acquired, other
than in the ordinary course of business; or (iv) acquire by purchase or
otherwise all or any substantial part of the business or assets of, or
stock or other evidence of beneficial ownership of, any Person, other
than such acquisitions as may be approved in writing by Lender; provided
that Borrower shall be permitted to acquire by purchase or otherwise, on
notice to Lender only but without Lender's prior approval as required
hereunder, any business or assets of, or stock or other evidence of
beneficial ownership of any Person, to the extent that the purchase
price for any such acquisition, individually or together with all other
acquisitions by Borrower hereunder on or after September 14, 2001, does
not exceed $20,000,000. Borrower agrees that compliance with this
Section 7.4 is a material inducement to Lender's advancing credit under
this Agreement. Borrower further agrees that in addition to all other
remedies available to Lender, Lender shall be entitled to specific
enforcement of the covenants in this Section 7.4, including without
limitation injunctive relief.
(m) Section 7.6 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 7.6. DIVIDENDS, DISTRIBUTIONS, AND MANAGEMENT FEES.
Borrower will not make, declare or pay any dividends or distributions
with respect to, purchase,
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redeem or otherwise acquire for value any of its outstanding stock now
or hereafter outstanding, or return any capital of its stockholders,
except pursuant to the Borrower's existing or future Restricted Stock
Agreements or as otherwise approved by the Board of Directors of the
applicable Borrower (provided, that such issuances, in the aggregate
shall not exceed 10% of the outstanding shares of the capital stock of
any such Borrower), nor shall Borrower pay management fees or fees of a
similar nature to any person other than to other entities which
constitute the Borrower (in accordance with the terms hereof); provided
that, so long as no Event of Default is occurring or continuing
hereunder, Borrower shall be permitted to pay dividends to its
Affiliates (regardless of whether any such Affiliate is a "Borrower"
hereunder).
(n) Section 7.12 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 7.12. TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES.
Borrower will not enter into any transaction, including without
limitation the purchase, sale, or exchange of property, or the loaning
or giving of funds to any Affiliate (except for any Affiliate that is
also a "Borrower" hereunder) or subsidiary, except in the ordinary
course of business and pursuant to the reasonable requirements of
Borrower's business and upon terms substantially the same and no less
favorable to Borrower as it would obtain in a comparable arm's length
transaction with any Person not an Affiliate (except for any Affiliate
that is also a "Borrower" hereunder) or subsidiary, and so long as the
transaction is not otherwise prohibited under this Agreement. For
purposes of the foregoing, Lender consents to the transactions described
on Schedule 7.12. Notwithstanding the foregoing, no Borrower will
transfer any assets to any subsidiary of Borrower identified on Schedule
4.1 or any other subsidiary of a Borrower entity which is not a Borrower
hereunder nor cause any such subsidiary to commence operations without
the prior written consent of Lender until such subsidiary is added as a
"Borrower" entity hereunder as set forth in Section 7.9 above for
purposes of including the assets of such subsidiary in the Collateral
(provided, however, that Lender shall not be required to lend against
the assets of such subsidiary added as a Borrower entity)."
(o) Section 7.14 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"Section 7.14. Change in Capital Structure. Except as set forth
on Schedule 7.14-1, there shall occur no change in Borrower's capital
structure as set forth in Schedule 7.14-2 without the prior written
consent of Lender, which consent shall not be unreasonably withheld."
(p) Section 8.1 of the Loan Agreement is hereby modified as follows:
9
(i) Section 8.1(e) is hereby modified by substituting
"200,000" for the figure "60,000" appearing therein.
(ii) Section 8.1(h) is hereby modified by substituting
"250,000" for the figure "100,000" appearing therein.
(iii) Section 8.1(k) is hereby modified by substituting
"500,000" for the figure "100,000" appearing therein.
(iv) Section 8.1 is hereby modified generally by (i) deleting
the "or" at the end of Section 8.1(q), (ii) substituting "; or" for the
"." at the end of Section 8.1(r) and (iii) by adding a new Section
8.1(s) as follows:
"(s) An Event of Default shall have occurred under the
Secured Term Note."
(q) Section 8.4 of the Loan Agreement is hereby modified by deleting
the first sentence thereof and replacing it with the following:
"Lender shall have the right to proceed against all or any
portion of the Collateral to satisfy in any order (a) the liabilities
and Obligations of Borrower or any of Borrower's subsidiaries or
Affiliates to Lender or any of Lender's Affiliates under this Agreement
or (b) upon the occurrence of an Event of Default under the Secured Term
Note, the liabilities and obligations of Borrower to Lender or any of
Lender's Affiliates under the Secured Term Note."
(r) A new Section 9.22 is hereby added to the Loan Agreement as
follows:
"SECTION 9.22. APPOINTMENT OF AGENT UNDER THIS AGREEMENT.
(a) Each of the entities comprising Borrower (other
than TriZetto) hereby irrevocably appoints and constitutes TriZetto as
its agent to request and receive Revolving Credit Loans (and to
otherwise act on behalf of each such entity pursuant to this Agreement
and the other Loan Documents) from Lender in the name or on behalf of
each such entity. Lender may disburse the Revolving Credit Loans to the
bank account of any one or more of such entities without notice to any
of the other entities comprising Borrower or any other Person at any
time obligated on or in respect of the Obligations.
(b) Each of the entities comprising Borrower (other
than TriZetto) hereby irrevocably appoints and constitutes TriZetto as
its agent to receive statements of account and all other notices from
Lender with respect to the Obligations or otherwise under or in
connection with this Agreement and the other Loan Documents.
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(c) No purported termination of the appointment of
TriZetto as agent hereunder shall be effective without the prior written
consent of Lender."
SECTION 6. INTENTIONALLY LEFT BLANK.
SECTION 7. ENFORCEABILITY. This Amendment constitutes the legal, valid
and binding obligation of New Borrower, and is enforceable against New Borrower
in accordance with its terms.
SECTION 8. EFFECTIVE DATE. The obligation of Lender to enter into and
perform this Amendment and to make Revolving Credit Loans under the Loan
Agreement is subject to the following conditions precedent:
(a) Lender shall have received two (2) executed originals of this
Amendment, the Certificate of Validity and all other Loan Documents required to
be executed and delivered hereunder or under the Loan Agreement, including but
not limited to updated Schedules to the Loan Agreement; provided, that Borrower
shall only be obligated to provide Lender with one (1) original of the executed
Third Amended and Restated Revolving Credit Note;
(b) Lender shall have received one (1) executed original of the
Secured Term Note in the aggregate principal amount of Six Million and No/100
Dollars ($6,000,000.00) dated of even date with this Amendment and made by
Borrower in favor of Lender;
(c) Lender shall have received all searches and good standing
certificates required under Section 4(c) hereof;
(d) Borrower, including without limitation New Borrower, shall have
complied and then be in compliance with all of the terms, covenants and
conditions set forth in this Amendment, the Loan Agreement and the other Loan
Documents;
(e) There shall have occurred and be continuing no Event of Default
and no event which, with the giving of notice or lapse of time or both, could
constitute an Event of Default;
(f) Lender shall have received an executed Secretary's certificate
from New Borrower together with all attachments thereto, including but not
limited to Board of Directors resolutions of New Borrower and copies of any
other action taken by New Borrower to authorize the execution, delivery and
performance of this Amendment and the borrowing of the Loan under the Loan
Documents, substantially in the form provided to New Borrower;
(g) Lender shall have received an executed certificate of chief
financial officer from each entity comprising Borrower, substantially in the
form provided to Borrower;
(h) Lender shall have received a written opinion of counsel for New
Borrower, dated the date of this Agreement, with respect to New Borrower only
and substantially in the form of the
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opinion previously delivered by counsel for Original Borrower in connection with
the execution and delivery of the Original Loan Agreement by Original Borrower;
(i) Lender shall have received and approved an updated Borrowing Base
Certificate of Borrower;
(j) Borrower shall have satisfied the conditions set forth in Section
5.1(l) (landlord estoppels) of the Loan Agreement, except the extent expressly
waived by Lender; and
(k) Borrower, including without limitation New Borrower, as
applicable, shall have provided Lender with any other executed documents or
other information required to be provided pursuant to the closing checklist
provided by Lender to Borrower or otherwise reasonably requested by Lender.
SECTION 9. COSTS. Borrower shall be responsible for the payment of all
costs of Lender incurred in connection with the preparation of this Amendment,
the Third Amended and Restated Revolving Credit Note, the UCC-1 Financing
Statements, the searches described above, all filing fees, and all reasonable
document preparation fees of Lender's in-house counsel.
SECTION 10. NO NOVATION. Lender's agreement to add New Borrower shall
not constitute a novation of the debt evidenced by the Revolving Credit Note (as
amended and restated hereby and by the Third Amended and Restated Revolving
Credit Note dated of even date herewith), nor shall it constitute a waiver of
the Lender's right of consent in connection with any future addition of new
borrowers.
SECTION 11. REFERENCE TO THE EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Loan Agreement as
amended by this Amendment.
(b) Except as specifically amended above, the Loan Agreement,
and all other Loan Documents, shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in this Amendment, operate as
a waiver of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments and
agreements executed or delivered in connection with the Loan Agreement.
SECTION 12 . GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Maryland without regard to
any otherwise applicable conflicts of laws principles thereof. Without limiting
the effectiveness of any other provision of this Amendment, the Loan Agreement
or the other Loan Document, New Borrower expressly agrees to be bound by the
provisions of Section 9.16, 9.18, 9.19 and 9.20 of the Loan Agreement.
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SECTION 13. HEADINGS. Section headings in this Amendment are included
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 14. COUNTERPARTS. This Amendment may be executed in any number
of counterparts (and by facsimile), each of which shall be deemed an original,
but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to Loan
and Security Agreement to be executed as of the date first written above.
LENDER:
HELLER HEALTHCARE FINANCE, INC.,
a Delaware corporation
By:
----------------------------------------
Name: David G. Moore
Title: Senior Vice President
ORIGINAL BORROWER:
THE TRIZETTO GROUP, INC.,
a Delaware corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
CREATIVE BUSINESS SOLUTIONS, INC.,
a Texas corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
13
FINSERV HEALTH CARE SYSTEMS, INC.,
a New York corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
HEALTHCARE MEDIA ENTERPRISES, INC.,
a Delaware corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
HEALTHWEB, INC., a Delaware corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
MARGOLIS HEALTH ENTERPRISES, INC.,
a California corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
14
NOVALIS CORPORATION, a Delaware
corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
TRIZETTO APPLICATION SERVICES, INC.,
a Colorado corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
DIGITAL INSURANCE SYSTEMS CORPORATION,
an Ohio corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
HEALTH NETWORKS OF AMERICA, INC.,
a Maryland corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
15
NOVALIS DEVELOPMENT CORPORATION,
a Delaware corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
NOVALIS DEVELOPMENT & LICENSING CORPORATION,
an Indiana corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
NOVALIS SERVICES CORPORATION
a Delaware corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
ADDITIONAL BORROWER:
ERISCO, INC., a New York corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
16
RESOURCE INFORMATION
MANAGEMENT SYSTEMS, INC.,
an Illinois corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
WINTHROP FINANCIAL GROUP, INC.,
an Illinois corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
OPTION SERVICES GROUP, INC., an
Illinois corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
NEW BORROWER:
INFOTRUST COMPANY, an Illinois corporation
By:
----------------------------------------
Name: Michael J. Sunderland
Title: Chief Financial Officer and Secretary
17