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EXHIBIT 10.24
[BANK ONE LOGO]
MASTER LEASE AGREEMENT
Dated As Of: _____________
This MASTER LEASE AGREEMENT is made and entered into by and between BANC
ONE LEASING CORPORATION ("Lessor"), and Ohio corporation, with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and the Lessee
identified below:
LESSEE NAME: THE TRIZETTO GROUP, INC.
LESSEE ADDRESS: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. LEASE OF EQUIPMENT: Lessor leases to Lessee, and Lessee leases from
Lessor, all the property described in the Lease Schedules which are signed from
time to time by Lessor and Lessee.
2. CERTAIN DEFINITIONS: "Schedule" means each Lease Schedule signed by
Lessee and Lessor which incorporates the terms of this Master Lease Agreement,
together with all exhibits, riders, attachments and addenda thereto. "Equipment"
means the property in each Schedule, together with all attachments, additions,
accessions, parts, repairs, improvements, replacements and substitutions
thereto. "Lease", "herein", "hereunder", "hereof" and similar words mean this
Master Lease Agreement and all Schedules, together with all exhibits, riders,
attachments and addenda to any of the foregoing, as the same may from time to
time be amended, modified or supplemented. "Prime Rate" means the prime rate of
interest announced from time to time as the prime rate by Bank One, Columbus,
NA; provided, that the parties acknowledge that the Prime Rate is not intended
to be the lowest rate of interest charged by said bank in connection with
extensions of credit. "Lien" means any security interest, lien, mortgage,
pledge, encumbrance, judgment, execution, attachment, warrant, writ, levy,
other judicial process or claim of any nature whatsoever by or of any person.
"Fair Market Value" means the amount which would be paid for an item of
Equipment by an informed and will buyer (other than a used equipment or scrap
dealer) and an informed and willing seller neither under a compulsion to buy or
sell. "Lessor's Cost" means the invoiced price of any item of Equipment plus
any other cost to Lessor of acquiring an item of Equipment. All terms defined
in the Lease are equally applicable to both the singular and plural form of
such terms.
3. LEASE TERM AND RENT: The term of the lease of the Equipment described
in each Schedule ("Lease Term") commences on the date stated in the Schedule
and continues for the term stated therein. As rent for the Equipment described
in each Schedule, Lessee shall pay Lessor the rent payments and all other
amounts stated in such Schedule, payable on the dates specified therein. All
payments due under the Lease shall be made in United States dollars at Lessor's
office stated in the opening paragraph or as otherwise directed by Lessor in
writing.
4. ORDERING, DELIVERY, REMOVAL AND INSPECTION OF EQUIPMENT: If an event
of default occurs or if for any reason Lessee does not accept, or revokes its
acceptance of, equipment covered by a purchase order or purchase contract or if
any commitment or agreement of Lessor to lease equipment to Lessee expires,
terminates or is otherwise canceled, then automatically upon notice from
Lessor, any purchase order or purchase contract and all obligations thereunder
shall be assigned to Lessee and Lessee shall pay and perform all obligations
thereunder. Lessee agrees to pay, defend, indemnify and hold Lessor harmless
from any liabilities, obligations, claims, costs and expenses (including
reasonable attorney fees and expenses) of whatever kind imposed on or asserted
against Lessor in any way related to any purchase orders or purchase contracts.
Lessee shall make all arrangements for, and Lessee shall pay all costs of,
transportation, delivery, installation and testing of Equipment. The Equipment
shall be delivered to Lessee's premises stated in the applicable Schedule and
shall not be removed without Lessor's prior written consent. Lessor has the
right upon reasonable notice to Lessee to inspect the Equipment wherever
located. Lessor may enter upon any premises where Equipment is located and
remove it immediately, without notice or liability to Lessee, upon the
expiration or other termination of the Lease Term.
5. MAINTENANCE AND USE: Lessee agrees it will, at its sole expense: (a)
repair and maintain the Equipment in good condition and working order and
supply and install all replacement parts or other devices when required to so
maintain the Equipment or when required by applicable law or regulation, which
parts or devices shall automatically become part of the Equipment; (b) use and
operate in a careful manner in the normal course of its business and only for
the purposes for which it was designed in accordance with the manufacturer's
warranty requirements, and comply with all laws and regulations relating to the
Equipment, and obtain all permits or licenses necessary to install, use or
operate the Equipment; and (c) make no alterations, additions, subtractions,
upgrades or improvements to the Equipment without Lessor's prior written
consent, but any such alterations, additions, upgrades or improvements shall
automatically become part of the Equipment. The Equipment will not be used or
located outside of the United States.
6. NET LEASE; NO EARLY TERMINATION: The Lease is a net lease. Lessee's
obligation to pay all rent and all other amounts payable under the Lease is
absolute and unconditional under any and all circumstances and shall not be
affected by any circumstance or any character including, without limitation,
(a) any setoff, claim, counterclaim, defense or reduction which Lessee may have
at any time against Lessor or any other party for any reason, or (b) any defect
in the condition, design or operation of, any lack of fitness for use of, any
damage to or loss of, or any lack of maintenance or service for any of the
Equipment. Each Schedule is a noncancelable lease of the Equipment described
therein and Lessee's obligation to pay rent and perform all other obligations
thereunder and under the Lease are not subject to cancellation or termination
by Lessee for any reason.
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[BANK ONE LOGO]
7. NO WARRANTIES BY LESSOR: LESSOR LEASES THE EQUIPMENT AS-IS, WHERE-IS,
AND WITH ALL FAULTS. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, OF ANY KIND AS TO THE EQUIPMENT INCLUDING, WITHOUT LIMITATION: ITS
MERCHANTABILITY; ITS FITNESS FOR ANY PARTICULAR PURPOSE; ITS DESIGN, CONDITION,
QUALITY, CAPACITY, DURABILITY, CAPABILITY, SUITABILITY OR WORKMANSHIP; ITS
NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT
OR OTHER INTELLECTUAL PROPERTY RIGHT; OR ITS COMPLIANCE WITH ANY LAW, RULE,
SPECIFICATION, PURCHASE ORDER OR CONTRACT PERTAINING THERETO. Lessor hereby
assigns to Lessee the benefit of any assignable manufacturer's or supplier's
warranties, but Lessor, at Lessee's written request, will cooperate with Lessee
in pursuing any remedies Lessee may have under such warranties. Any action
taken with regard to warranty claims against any manufacturer or supplier by
Lessee will be at Lessee's sole expense. LESSOR MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND AS TO THE FINANCIAL CONDITION OR
FINANCIAL STATEMENTS OF ANY PARTY OR AS TO THE TAX OR ACCOUNTING TREATMENT OR
CONSEQUENCES OF THE LEASE, THE EQUIPMENT OR THE RENTAL PAYMENTS.
8. INSURANCE: Lessee at its sole expense shall at all times keep each item
of Equipment insured against all risks of loss or damage from every cause
whatsoever for an amount not less than the greater of the full replacement
value or the Lessor's Cost of such item of Equipment. Lessee at its sole
expense shall at all times carry public liability and property damage insurance
in amounts satisfactory to Lessor protecting Lessee and Lessor from liabilities
for injuries to persons and damage to property of others relating in any way to
the Equipment. All insurers shall be reasonably satisfactory to Lessor. Lessee
shall deliver to Lessor satisfactory evidence of such coverage. Proceeds of any
insurance covering damage or loss of the Equipment shall be payable to Lessor
as loss payee and shall, at Lessor's option, be applied toward (a) the
replacement, restoration or repair of the Equipment, or (b) payment of the
obligations of Lessee under the Lease. Proceeds of any public liability or
property insurance shall be payable first to Lessor as additional insured to
the extent of its liability, then to Lessee. If an event of default occurs and
is continuing, or if Lessee fails to make timely payments due under Section 9
hereof, then Lessee automatically appoints Lessor as Lessee's attorney-in-fact
with full power and authority in the place of Lessee and in the name of Lessee
or Lessor to make claim for, receive payment of, and sign and endorse all
documents, checks or drafts for loss or damage under any such policy. Each
insurance policy will require that the insurer give Lessor at least 30 days
prior written notice of any cancellation of such policy and will require that
Lessor's interests remain insured regardless of any act, error, omission,
neglect or misrepresentation of Lessee. The insurance maintained by Lessee
shall be primary without any right of contribution from insurance which may be
maintained by Lessor.
9. LOSS AND DAMAGE: (a) Lessee bears the entire risk of loss, theft,
damage or destruction of Equipment in whole or in part from any reason
whatsoever ("Casualty Loss"). No Casualty Loss to Equipment shall relieve
Lessee from the obligation to pay rent or from any other obligation under the
Lease. In the event of Casualty Loss to any item of Equipment, Lessee shall
immediately notify Lessor of the same and Lessee shall, if so directed by
Lessor, immediately repair the same. If Lessor determines that any item of
Equipment has suffered a Casualty Loss beyond repair ("Lost Equipment"), then
Lessee, at the option of Lessor, shall: (1) immediately replace the Lost
Equipment with similar equipment in good repair, condition and working order
free and clear of any Liens and deliver to Lessor a ▇▇▇▇ of sale covering the
replacement equipment, in which event such replacement equipment shall
automatically be Equipment under the Lease; or (2) On the rent payment date
which is at least 30 but not more than 60 days after the date of the Casualty
Loss, pay to Lessor all amounts then due and payable by Lessee under the Lease
for the Lost Equipment plus the Stipulated Loss Value for such Lost Equipment
as of the date of the Casualty Loss. Upon payment by Lessee of all amounts due
under the above clause (2), the lease of the Lost Equipment will terminate and
Lessor shall transfer to Lessee all of Lessor's right, title and interest in
such Equipment on "as-is, where-is" basis with all faults, without recourse and
without representation or warranty of any kind, express or implied.
(b) "Stipulated Loss Value" of any item of Equipment during its Lease Term
equals the present value discounted in arrears to the applicable date at the
applicable SLV Discount Rate of (1) the remaining rents and all other amounts
[including, without limitation, any balloon payment and, as to a terminal rental
adjustment clause ("TRAC") lease, the TRAC value stated in the Schedule, and
any other payments required to be paid by Lessee at the end of the applicable
Lease Term] payable under the Lease for such item on and after such date to the
end of the applicable Lease Term and (2) an amount equal to the Economic
Value of the Equipment. For any item of Equipment, "Economic Value" means the
Fair Market Value of the Equipment at the end of the applicable Lease Term as
originally anticipated by Lessor at the Commencement Date of the applicable
Schedule; provided, that Lessee agrees that such value shall be determined by
the books of Lessor as of the Commencement Date of the applicable Schedule.
After the payment of all rent due under the applicable Schedule and the
expiration of the Lease Term of any item of Equipment, the Stipulated Loss Value
of such item equals the Economic Value of such item. Stipulated Loss Value
shall also include any Taxes payable by Lessor in connection with its receipt
thereof. For any item of Equipment, "SLV Discount Rate" means an interest rate
equal to the Prime Rate in effect on the Commencement Date of the Schedule for
such item minus two percentage points.
10. TAX BENEFITS INDEMNITY. (a) The Lease has been entered into on the
basis that Lessor shall be entitled to such deductions, credits and other tax
benefits as are provided by federal, state and local income tax law to an owner
of the Equipment (the "Tax Benefits") including, without limitation: (1)
modified accelerated cost recovery deductions on each item of Equipment under
Section 168 of the Code (as defined below) in an amount determined commencing
with the taxable year in which the Commencement Date of the applicable Schedule
occurs, using the maximum allowable depreciation method available under Section
168 of the Code, using a recovery period (as defined in Section 168 of the
Code) reasonably determined by Lessor, and using an initial adjusted basis
which is equal to the Lessor's Cost of such item; (2) amortization of the
expenses paid by Lessor in connection with the Lease on a straight-line basis
over the term of the applicable Schedule; and (3) Lessor's federal taxable
income will be subject to the maximum rate on corporations in effect under the
Code as of the Commencement Date of the applicable Schedule.
(b) If on any one or more occasions (1) Lessor shall lose, shall not have
or shall lose the right to claim all or any part of the Tax Benefits, (2) there
shall be reduced, disallowed, recalculated or recaptured all or any part of the
Tax Benefits, or (3) all or any part of the Tax Benefits is reduced by a change
in law or regulation (each of the events described in subparagraphs 1, 2, or 3
of this paragraph (b) will be referred to as a "Tax Loss"), then upon 30 days
written notice by Lessor to Lessee that a Tax Loss has occurred, Lessee shall
pay Lessor an amount which, in the reasonable opinion of Lessor and after the
deduction of all taxes required to be paid by Lessor with respect to the receipt
of such amount, will provide Lessor with the same after-tax net economic yield
which was originally anticipated by Lessor as of the Commencement Date of the
applicable Schedule.
(c) A Tax Loss shall occur upon the earliest of: (1) the happening of
any event (such as disposition or change in use of an item of Equipment) which
may cause such Tax Loss; (2) Lessor's payment to the applicable taxing
authority of the tax increase resulting from such Tax Loss; or (3) the
adjustment of Lessor's tax return to reflect such Tax Loss.
(d) Lessor shall not be entitled to payment under this section for any
Tax Loss caused solely by one or more of the following events: (1) a
disqualifying sale or disposition of an item of Equipment by Lessor prior to
any default by Lessee; (2) Lessor's failure to timely or properly claim the Tax
Benefits in Lessor's tax return; (3) a disqualifying change in the nature of
Lessor's business or liquidation thereof; (4) a foreclosure by any person
holding through Lessor a security interest on an item of Equipment which
foreclosure results solely from an act of Lessor; or (5) Lessor's failure to
have sufficient taxable income or tax liability to utilize the Tax Benefits.
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[BANK ONE LOGO]
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended. For
the purposes of this section 10, the term "Lessor" shall include any affiliate
group (within the meaning of section 1504 of the Code) of which Lessor is a
member for any year in which a consolidated income tax return is filed for such
affiliated group. Lessee's obligations under this section shall survive
the expiration, cancellation or termination of the Lease.
11. GENERAL TAX INDEMNITY: Lessee will pay, and will defend, indemnify and
hold Lessor harmless on an after-tax basis from, any and all Taxes (as defined
below) and related audit and contest expenses on or relating to (a) any of the
Equipment, (b) the Lease, (c) purchase, acceptance, ownership, lease,
possession, use, operation, transportation, return or other disposition of any
of the Equipment, and (d) rentals or earnings relating to any of the Equipment
or the Lease. "Taxes" means present and future taxes or other governmental
charges that are not based on the net income of Lessor, whether they are
assessed to or payable by Lessee or Lessor, including, without limitation (i)
sales, use, excise, licensing, registration, titling, franchise, business and
occupation, gross receipts, stamp and personal property taxes, (ii) levies,
imposts, duties, assessments, charges and withholdings, (iii) penalties, fines,
and additions to tax and (iv) interest on any of the foregoing. Unless Lessor
elects otherwise, Lessor will prepare and file all reports and returns relating
to any Taxes and will pay all Taxes to the appropriate taxing authority. Lessee
will reimburse Lessor for all such payments promptly on request. On or after any
applicable assessments/levy/lien date for any personal property Taxes relating
to any Equipment, Lessee agrees that upon Lessor's request Lessee shall pay to
Lessor the personal property Taxes which Lessor reasonably anticipates will be
due, assessed, levied or otherwise imposed on any Equipment during its Lease
Term. If Lessor elects in writing, Lessee will itself prepare and file all such
reports and returns, pay all such Taxes directly to the taxing authority, and
send Lessor evidence thereof. Lessee's obligations under this section shall
survive the expiration, cancellation or termination of the Lease.
12. GENERAL INDEMNITY: Lessee assumes all risk and liability for, and
shall defend, indemnify and keep Lessor harmless on an after-tax basis from,
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses, including reasonable attorney fees and
expenses, of whatsoever kind and nature imposed on, incurred by or asserted
against Lessor, in any way relating to or arising out of the manufacture,
purchase, acceptance, rejection, ownership, possession, use, selection,
delivery, lease, operation, condition, sale, return or other disposition of the
Equipment or any part thereof (including, without limitation, any claim for
latent or other defects, whether or not discoverable by Lessee or any other
person, any claim for negligence, tort or strict liability, any claim under any
environmental protection or hazardous waste law and any claim for patent,
trademark or copyright infringement). Lessee will not indemnify Lessor under
this section for loss or liability arising from events which occur after the
Equipment has been returned to Lessor or for loss or liability caused directly
and solely by the gross negligence or willful misconduct of Lessor. In this
section, "Lessor" also includes any director, officer, employee, agent,
successor or assign of Lessor. Lessor's obligations under this section shall
survive the expiration, cancellation or termination of the Lease.
13. PERSONAL PROPERTY: Lessee represents and agrees that the Equipment
is, and shall at all times remain, separately identifiable personal property.
Upon Lessor's request, Lessee shall furnish Lessor a landlord's and/or
mortgagee's waiver and consent to remove all Equipment. Lessor may display
notice of its interest in the Equipment by any reasonable identification.
Lessee shall not alter or deface any such indicia of Lessor's interest.
14. DEFAULT: Each of the following events shall constitute an event of
default under the Lease: (a) Lessee fails to pay any rent or other amount due
under the Lease within ten days of its due date; or (b) Lessee fails to perform
or observe any of its obligations in Sections 8, 18, or 22 hereof; or (c) Lessee
fails to perform or observe any of its other obligations in the Lease for more
than 30 days after Lessor notifies Lessee of such failure; or (d) Lessee or any
Lessee affiliate defaults in the payment, performance or observance of any
obligation under any loan, credit agreement or other lease in which Lessor or
any subsidiary (direct or indirect) of Bank One Corporation (which is Lessor's
ultimate parent corporation) is the creditor or Lessor, or (e) any statement,
representation or warranty made by Lessee in the Lease, in any Schedule or in
any document, certificate or financial statement in connection with the Lease
proves at any time to have been untrue or misleading in any material respect as
of the time when made; or (f) Lessee becomes insolvent or bankrupt, or Lessee
admits its inability to pay its debts as they mature, or Lessee makes an
assignment for the benefit of creditors, or Lessee applies for, institutes or
consents to the appointment of a receiver, trustee or similar official for
Lessee or any substantial part of its property or any such official is appointed
without Lessee's consent, or Lessee applies for, institutes or consents to any
bankruptcy, insolvency, reorganization, debt moratorium, liquidation or similar
proceeding relating to Lessee or any substantial part of its property under the
laws of any jurisdiction or any such proceeding is instituted against Lessee
without stay or dismissal for more than 30 days, or Lessee commences any act
amounting to a business failure or a winding up of its affairs, or Lessee ceases
to do business as a going concern; or (g) with respect to any guaranty, letter
of credit, pledge agreement, security agreement, mortgage, deed of trust, debt
subordination agreement or other credit enhancement or credit support agreement
(whether now existing or hereafter arising) signed or issued by any party in
connection with all or any part of Lessee's obligations under the Lease, the
party signing or issuing any such agreement defaults in its obligations
thereunder or any such agreement shall cease to be in full force and effect or
shall be declared to be null, void, invalid or unenforceable by the party
signing or issuing it; or (h) there shall occur in Lessor's reasonable opinion
any material adverse change in the financial condition, business or operations
of Lessee.
As used in this section 14, the term "Lessee" also includes any guarantor
(whether now existing or hereafter arising) of all or any part of Lessee's
obligations under the Lease and/or any issuer of a letter of credit (whether
now existing or hereafter arising) relating to all or any part of Lessee's
obligations under the Lease, and the term "Lease" also includes any guaranty or
letter of credit (whether now existing or hereafter arising) relating to all or
any part of Lessee's obligations under the Lease.
15. REMEDIES. If any event of default exists, Lessor may exercise in any
order one or more of the remedies described in the lettered subparagraphs of
this section, and Lessee shall perform its obligations imposed thereby;
(a) Lessor may require Lessee to return any or all Equipment as provided
in the Lease.
(b) Lessor or its agent may repossess any or all Equipment wherever found,
may enter the premises where the Equipment is located and disconnect, render
unusable and remove it, and may use such premises without charge to store or
show the Equipment for sale.
(c) Lessor may sell any or all Equipment at public or private sale, with
or without advertisement or publication, may re-lease or otherwise dispose of
it or may use, hold or keep it.
(d) Lessor may require Lessee to pay to Lessor on a date specified by
Lessor, with respect to any or all Equipment (i) all accrued and unpaid rent,
late charges and other amounts due under the Lease on or before such date, plus
(ii) as liquidated damages for loss of a bargain and not as a penalty, and in
lieu of any further payments of rent, the Stipulated Loss Value of the
Equipment on such date, plus (iii) interest at the Overdue Rate on the total of
the foregoing ("Overdue Rate" means an interest rate per annum equal to the
higher of 18% or 2% over the Prime Rate, but not to exceed the highest rate
permitted by applicable law). The parties acknowledge that the foregoing money
damage calculation reasonably reflects Lessor's anticipated loss with respect
to the Equipment and the related Lease resulting from the event of default.
If an event of default under section 14 (f) of this Master Lease Agreement
exists, then Lessee will be automatically liable to pay Lessor the foregoing
amounts as of the next payment date unless Lessor otherwise elects in writing.
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(e) Lessee shall pay all costs, expenses and damages incurred by Lessor
because of the event of default or its actions under this section, including,
without limitation any collection agency and/or attorney fees and expenses, any
costs related to the repossession, safekeeping, storage, repair, reconditioning
or disposition of the Equipment and any incidental and consequential damages.
(f) Lessor may terminate the Lease and/or any or all Schedules, may ▇▇▇
to enforce Lessee's performance of its obligations under the Lease and/or may
exercise any other right or remedy then available to Lessor at law or in equity.
Lessor is not required to take any legal process or give Lessee any notice
before exercising any of the above remedies. None of the above remedies is
exclusive, but each is cumulative and in addition to any other remedy available
to Lessor. Lessor's exercise of one or more remedies shall not preclude its
exercise of any other remedy. No action taken by Lessor shall release Lessee
from any of its obligations to Lessor. No delay or failure on the part of
Lessor to exercise any right hereunder shall operate as a waiver thereof, nor
as an acquiescence in any default, nor shall any single or partial exercise of
any right preclude any other exercise thereof or the exercise of any other
right. After any default, Lessor's acceptance of any payment by Lessee under
the Lease shall not constitute a waiver by Lessor of such default, regardless of
Lessor's knowledge or lack of knowledge at the time of such payment, and shall
not constitute a reinstatement of the Lease if the Lease has been declared in
default by Lessor, unless Lessor has agreed in writing to reinstate the Lease
and to waive the default.
If Lessor actually repossesses any Equipment, then it will use
commercially reasonable efforts under the then current circumstances to
attempt to mitigate its damages, provided, that Lessor shall not be required to
sell, release or otherwise dispose of any Equipment prior to Lessor enforcing
any of the remedies described above. Lessor may sell or release the Equipment
in any manner it chooses, free and clear of any claims or rights of Lessee and
without any duty to account to Lessee with respect thereto except as provided
below. If Lessor actually sells or releases the Equipment, it will credit the
net proceeds of any sale of the Equipment, or the net present value (discounted
at the then current Prime Rate) of the rents payable under any new lease of
the Equipment, against and up to (but not exceeding) the Stipulated Loss Value
of the Equipment and any other amounts Lessee owes Lessor, or will reimburse
Lessee for and up to (but not exceeding) Lessee's payment thereof. The term
"net" as used above shall mean such amount after deducting the costs and
expenses described in clause(3) above of this section. If lessor elects in
writing not to sell or release any Equipment, it will similarly credit or
reimburse Lessee for Lessor's reasonable estimate of such Equipment's Fair
Market Value.
16. LESSOR'S RIGHT TO PERFORM: If Lessee fails to make any payment under
the Lease or fails to perform any of its agreements in the Lease (including,
without limitation, its agreement to provide insurance coverage as stated in
the Lease), Lessor may itself make such payment or perform such agreement, and
the amount of such payment and the amount of the expenses of Lessor incurred in
connection with such payment or performance shall be deemed to be additional
rent, payable by Lessee on demand.
17. FINANCIAL REPORTS: Lessee agrees to furnish to Lessor, (a) annual
financial statements setting forth the financial condition and results of
operation of Lessee (financial statements shall include balance sheet, income
statement and changes in financial position and all notes thereto) within 120
days of the end of each fiscal year of Lessee; (b) quarterly financial
statements setting forth the financial condition and results of operation of
Lessee within 60 days of the each of the first three fiscal quarters of Lessee;
and (c) such other financial information as Lessor may from time to time
reasonably request including, without limitation, financial reports filed by
Lessee with federal or state regulatory agencies. All such financial
information shall be prepared in accordance with generally accepted accounting
principles. If Lessee fails to furnish the annual financial statements to
Lessor within 30 days of Lessor's written request, then Lessor may, at its
option, charge Lessee a non-performance fee equal to all the rentals due under
the Lease for the current month (unless otherwise prohibited by law) and such
fees shall be deemed to be additional rent, payable by Lessee on demand.
18. NO CHANGE IN LESSEE: Lessee shall not; (a) liquidate, dissolve or
suspend business; (b) sell, transfer or otherwise dispose of all or a majority
of its assets, except that Lessee may sell its inventory in the ordinary course
of its business; (c) enter into any merger, consolidation or similar
reorganization unless it is the surviving corporation; (d) transfer all or any
substantial part of its operations or assets outside of the United States of
America; or (e) without 30 days advance written notice to Lessor, change its
name or chief place of business. Lessee shall at all times maintain a tangible
net worth which is no less than the greater of 75% of its tangible net worth as
of the date of the Master Lease Agreement or 75% of its highest tangible net
worth thereafter.
19. LATE CHARGES: If any rent or other amount payable under the Lease is
not paid when due, then as compensation for the administration and enforcement
of Lessee's obligation to make timely payments, Lessee shall pay with respect
to each overdue payment on demand an amount equal to the greater of fifteen
dollars ($15.00) or five percent (5%) of the each overdue payment (but not to
exceed the highest late charge permitted by applicable law) plus any collection
agency fees and expenses.
20. NOTICES; POWER OF ATTORNEY: (a) Service of all notices under the
Lease shall be sufficient if given personally or couriered or mailed to the
party involved at its respective address set forth herein or at such other
address as such party may provide in writing from time to time. Any such notice
mailed to such address shall be effective three days after deposit in the
United States mail with postage prepaid, (b) With respect to any power of
attorney covered by the Lease, the powers conferred on Lessor thereby; are
powers coupled with an interest; are irrevocable; are solely to protect
Lessor's interests under the Lease; and do not impose any duty on Lessor to
exercise such power. Lessor shall be accountable solely for amounts it actually
receives as a result of its exercise of such powers.
21. ASSIGNMENT BY LESSOR: Lessor and any assignee of Lessor, with or
without notice to or consent of Lessee, may sell, assign, transfer or grant a
security interest in all or any part of Lessor's rights, obligations, title or
interest in the Equipment, the Lease, any Schedule or the amounts payable under
the Lease or any Schedule to any entity ("transferee"). The transferee shall
succeed to all of Lessor's rights in respect to the Lessee (including, without
limitation, all rights to insurance and indemnity protection described in the
Lease). Lessee agrees to sign any acknowledgment and other documents reasonably
requested by Lessor or the transferee in connection with any such transfer
transaction. Lessee, upon receiving notice of any such transfer transactions,
shall comply with the terms and conditions thereof. Lessee agrees that it shall
not assert against any transferee any claim, defense, setoff, deduction or
counterclaim which Lessee may now or hereafter be entitled to assert against
Lessor. Unless otherwise agreed in writing, the transfer transaction shall not
relieve Lessor of any of its obligations to Lessee under the Lease and Lessee
agrees that the transfer transaction shall not be construed as being an
assumption of such obligations by the transferee.
22. NO ASSIGNMENT, SUBLEASE OR LIEN BY LESSEE: LESSEE SHALL NOT, DIRECTLY
OR INDIRECTLY, (a) MORTGAGE, ASSIGN, SELL, TRANSFER, OR OTHERWISE DISPOSE OF
THE LEASE OR ANY INTEREST THEREIN OR THE EQUIPMENT OR ANY PART THEREOF, OR (b)
SUBLEASE, RENT, LEND OR TRANSFER POSSESSION OR USE OF THE EQUIPMENT OR ANY PART
THEREOF TO ANY PARTY, OR (c) CREATE, INCUR, GRANT, ASSUME OR ALLOW TO EXIST ANY
LIEN ON THE LEASE, ANY SCHEDULE, THE EQUIPMENT OR ANY PART THEREOF.
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[BANK 1 ONE. LOGO]
23. EXPIRATION OF LEASE TERM: (a) At least 90 days (or earlier if
otherwise specified), but no more than 270 days prior to expiration of the
Lease Term of each Schedule, Lessee shall give Lessor written notice of its
electing one of the following options for all (but not less than all) of the
Equipment covered by such Schedule: return the Equipment under clause (b)
below; or purchase the Equipment under clause (c) below. The election of an
option shall be irrevocable. If Lessee fails to give timely notice of its
election, it shall be deemed to have elected to return the Equipment.
(b) If Lessee elects or is deemed to have elected to return the Equipment
at the expiration of the Lease Term of a Schedule or if Lessee is obligated at
any time to return the Equipment, then Lessee shall, at its sole expense and
risk, deinstall, disassemble, pack, crate, insure and return the Equipment to
Lessor (all in accordance with applicable industry standards) at any location
in the continental United States of America selected by Lessor. The Equipment
shall be in the same condition as when received by Lessee, reasonable wear,
tear and depreciation resulting from normal and proper use excepted (or, if
applicable, in the condition set forth in the Lease or the Schedule), shall be
in good operating order and maintenance as required by the Lease, shall be
certified as being eligible for any available manufacturer's maintenance
program, shall be free and clear of any Liens as required by the Lease, shall
comply with all applicable laws and regulations and shall include all manuals,
specifications, repair and maintenance records and similar documents. Until
Equipment is returned as required above, all terms of the Lease shall remain in
full force and effect including, without limitation, obligations to pay rent
and insure the Equipment; provided, that after the expiration of any Schedule
and before Lessee has completed its return of the Equipment or its purchase
option (if elected), the term of the lease of the Equipment covered by such
Schedule shall be month-to-month or such shorter period as may be specified by
Lessor.
(c) If Lessee gives Lessor timely notice of its election to purchase
Equipment, then on the expiration date of the applicable Schedule Lessee shall
purchase all (but not less than all) of the Equipment and shall pay to Lessor
the Fair Market Value of the Equipment plus all Taxes (other than income taxes
on Lessor's gains on such sale), costs and expenses incurred or paid by Lessor
in connection with such sale plus all accrued but unpaid amounts due with
respect to the Equipment and/or the Schedule. The Stipulated Loss Value or
Economic Value of any item of Equipment shall have no bearing or influence on
the determination of Fair Market Value under this clause (c). Upon payment in
full of the above amounts, and if no default has occurred and is continuing
under the Lease, Lessor shall transfer title to such Equipment to Lessee
"as-is, where-is" with all faults and without recourse to Lessor and without
any representation or warranty of any kind whatsoever by Lessor, express or
implied.
(d) For purposes of the purchase option of the Lease, the determination
of the Fair Market Value of any Equipment shall be determined (1) without
deducting any costs of dismantling or removal from the location of use, (2) on
the assumption that the Equipment is in the condition required by the
applicable return and maintenance provisions of the Lease and is free and clear
of any Liens as required by the Lease, and (3) shall be determined by mutual
agreement of Lessee and Lessor or; if Lessor and Lessee are not able to agree
on such value, by the Appraisal Procedure. "Appraisal Procedure" means the
determination of Fair Market Value by an independent appraiser acceptable to
Lessor and Lessee, or, if the parties are unable to agree on an acceptable
appraiser, by averaging the valuation (disregarding the one which differs the
most from the other two) of three independent appraisers, the first appointed
by Lessor, the second appointed by Lessee and the third appointed by the first
two appraisers. For purposes of the "Remedies" section of the Lease, the Fair
Market Value shall be determined by Lessor in good faith and any such valuation
shall be on an "as-is, where is" basis without regard to the first sentence of
clause (d). Lessee, at its sole expense, shall pay all fees, costs and expenses
of the above described appraisers.
24. GOVERNING LAW: THE INTERPRETATION, CONSTRUCTION AND VALIDITY OF THE
LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OHIO. WITH RESPECT TO ANY
ACTION BROUGHT BY LESSOR AGAINST LESSEE TO ENFORCE ANY TERM OF THE LEASE,
LESSEE HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE OR
FEDERAL COURT IN THE FRANKLIN COUNTY, OHIO, WHERE LESSOR HAS ITS PRINCIPAL
PLACE OF BUSINESS AND WHERE PAYMENTS ARE TO BE MADE BY LESSEE.
25. MISCELLANEOUS: (a) Subject to the limitations herein, the Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, successors and assigns. (b) This Master Lease
Agreement and each Schedule may be executed in any number of counterparts,
which together shall constitute a single instrument. Only one counterpart of
each Schedule shall be marked "Lessor's Original" and all other counterparts
shall be marked "Duplicate". A security interest in any Schedule may be created
through transfer and possession only of the counterpart marked "Lessor's
Original". (c) Section and paragraph headings in this Master Lease Agreement
and the Schedules are for convenience only and have no independent meaning. (d)
The terms of the Lease shall be severable and if any term thereof is declared
unconscionable, invalid, illegal or void, in whole or in part, the decision so
holding shall not be construed as impairing the other terms of the Lease
and the Lease shall continue in full force and effect as if such invalid,
illegal, void or unconscionable term were not originally included herein. (e)
All indemnity obligations of Lessee under the Lease and all rights, benefits
and protections provided to Lessor by warranty disclaimers shall survive the
cancellation, expiration or termination of the Lease. (f) Lessor shall not be
liable to Lessee for any indirect, consequential or special damages for any
reason whatsoever. (g) Each payment made by Lessee shall be applied by Lessor
in such manner as Lessor determines in its discretion which may include,
without limitation, application as follows: first, to accrued late charges;
second, to accrued rent; and third, the balance to any other amounts then due
and payable by Lessee under the Lease. (h) If the Lease is signed by more than
one Lessee, each of such Lessees shall be jointly and severally liable for
payment and performance of all of Lessee's obligations under the Lease.
26. ENTIRE AGREEMENT: THE LEASE REPRESENTS THE FINAL, COMPLETE AND ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO. THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS
OR UNDERSTANDINGS AFFECTING THE LEASE OR THE EQUIPMENT. Lessee agrees that
Lessor is not the agent of any manufacturer or supplier, that no manufacturer
or supplier is an agent of Lessor, and that any representation, warranty or
agreement made by manufacturer, supplier or by their employees, sales
representatives or agents shall not be binding on Lessor.
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[BANK 1 ONE. LOGO]
27. JURY WAIVER: ALL PARTIES TO THIS MASTER LEASE AGREEMENT WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN
CONNECTION WITH OR IN ANY WAY RELATED TO THIS MASTER LEASE AGREEMENT.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Master Lease Agreement as of the date first written above.
BANC ONE LEASING CORPORATION THE TRIZETTO GROUP, INC.
Lessor
(Name of Lessee)
By: By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Title: Title: SR VP, CFO
-------------------------- --------------------------
Lessee's Witness:
---------------
Regardless of any prior, present or future oral agreement or course of
dealing, no term or condition of the lease may be amended, modified, waived,
discharged, cancelled or terminated except by a written instrument signed by
the party to be bound; except Lessee authorizes Lessor to complete the
Acceptance Date of each schedule and the serial numbers of any equipment.
THE TRIZETTO GROUP, INC.
(Name of Lessee)
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: SR VP, CFO
--------------------------
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[BANK 1 ONE LOGO]
SECURITY AGREEMENT
This Agreement is made as of ____________ by and between BANC ONE LEASING
CORPORATION ("Banc One Leasing"), with Banc One Leasing's mailing address being
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ (▇▇▇-▇▇▇▇), ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and
Debtor(s) identified below (individually and collectively, the "Debtor").
Debtor means: THE TRIZETTO GROUP, INC.
Lease/Loan Customer: THE TRIZETTO GROUP, INC.
1. Grant of Security Interest. For valuable consideration, receipt of
which is hereby acknowledged, Debtor grants, pledges and assigns to Banc One
Leasing a security interest in all of Debtor's respective right, title and
interest, purchase money as appropriate, in and to the property described
below, now or hereafter arising or acquired, wherever located, together with
any and all additions, accessions, parts, accessories, substitutions and
replacements thereof, now or hereafter installed in, affixed to or used in
connection with said property, in all products and proceeds thereof, cash and
non-cash, including, but not limited to, proceeds of notes, checks,
instruments, indemnity proceeds, or any insurance on such and any refund or
rebate of premiums on such, and all books, records, ledger cards, files,
correspondence, computer program, tapes, disks and related data processing
software, owned by Debtor or in which it has an interest that at any time
evidences or contains information relating thereto or is otherwise necessary or
helpful in the collection thereof or realization thereupon ("Collateral"), to
secure the prompt payment and complete performance of the Obligations (as
hereinafter defined); provided, however, that the Collateral shall not include
any Hazardous Materials (as hereinafter defined), except for any Hazardous
Materials (a) which are and/or hereafter will be handled, stored and contained
in accordance with all applicable Hazardous Materials Laws (as hereinafter
defined) and (b) which either (i) are and/or will be hereafter used or useful
in the ordinary course of business of Debtor or (ii) have a resale or salvage
value which exceeds the cost of disposing of each Hazardous Materials.
The Collateral in which this security interest is granted is all of the
Debtor's property described in EXHIBIT A attached hereto (and such terms as are
used in Exhibit A shall be used in their broader definitions and shall include,
without limitation, the definitions of such terms as are found in the Uniform
Commercial Code that governs security interests in any such property).
2. Secured Obligations. This Agreement secures the full and prompt
performance of all obligations which any Lease/Loan Customer identified above
(hereinafter individually and collectively called "Customer") and/or any Debtor
now have or may hereafter have to Banc One Leasing, including, but not limited
to, obligations under equipment leases, promissory notes, loan agreements and
guaranties executed in connection with equipment leases, promissory notes or
loan agreements (including but not limited to all present and future leases,
promissory notes, loan agreements and guaranties), and secures the prompt
payment when due (whether at scheduled maturity, upon acceleration or
otherwise) of any and all sums, indebtedness, obligations and liabilities of
whatsoever nature, due or to become due, direct or indirect, absolute or
contingent, joint or several, now or hereafter at any time owed or contracted
by any Customer or any Debtor to Banc One Leasing and whether owing by any
Customer or any Debtor alone or with one or more other customers, persons or
other parties, and all costs and expenses of and incidental to collection of
any of the foregoing, including reasonable attorneys' fees (all of the
foregoing hereinafter called "Obligations"). It is Debtor's express intention
that this Agreement and the continuing security interest granted hereby, in
addition to covering all present Obligations of any Customer and/or any Debtor
to Banc One Leasing, shall extend to all future Obligations of any Customer and
any Debtor to Banc One Leasing, whether or not such Obligations are reduced or
entirely extinguished and thereafter increased or are reincurred, and whether
or not such Obligations are specifically contemplated by any Debtor and Banc
One Leasing as of the date hereof. The absence of any reference to this
Agreement in any documents, instruments or agreements evidencing or relating to
any Obligations secured hereby shall not limit or be construed to limit the
scope of this Agreement.
3. Location(s) of Collateral. The Collateral will be kept at the
location(s) set forth in EXHIBIT B attached hereto ("Location").
4. Representations, Warranties and Covenants. Debtor represents, warrants,
covenants and agrees as follows:
(a) Debtor is and will continue to be (or, with respect to after acquired
property, will be when acquired), the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, mortgage, charge or
encumbrance except for the security interest created by this Agreement and/or
any Permitted Lien. "Permitted Lien" means any other security interest in any
of the Collateral in favor of the Lienholder(s) that is/are identified on
EXHIBIT C attached hereto and approved by Banc One Leasing. Except as may be
related to a Permitted Lien, no effective Uniform Commercial Code ("UCC")
financing statement or other instrument covering all or any part of the
Collateral is on
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[BANK 1 ONE LOGO]
file in any recording office, except those in favor of Banc One Leasing;
(b) Debtor will join with Banc One Leasing in executing such financing
statements, security agreements, or other instruments in form satisfactory to
Banc One Leasing upon Banc One Leasing's request and, in the event for any
reason the law of any jurisdiction becomes or is applicable to the Collateral or
any part thereof, or to any Obligation owed to Banc One Leasing, Debtor agrees
to execute and deliver all such instruments and to do all of such other things
as may be reasonably necessary or appropriate to preserve, protect and enforce
the security interest and lien of Banc One Leasing under the law of such
jurisdiction to the extent such security interest would be protected under that
jurisdiction's UCC and will pay all expenses of filing and releasing same in all
public offices wherever filing is deemed necessary or desired by Banc One
Leasing;
(c) The Collateral will not be attached or affixed to real estate in such a
manner that it would become a fixture thereto or an accession to other goods
without prior disclosure, notification to and approval by Banc One Leasing in
addition in the execution of an owner/mortgagee/landlord release/waiver in favor
of Banc One Leasing;
(d) Debtor at its sole expense shall keep each item of Collateral insured
against all risks of loss or damage from every cause whatsoever for an amount
not less than the greater of the full replacement value or the original cost of
acquiring such item of Collateral. Debtor at its sole expense shall carry public
liability and property damage insurance in amounts satisfactory to Banc One
Leasing protecting Debtor and Banc One Leasing from liabilities for injuries to
persons and damage to property of others relating in any way to the Collateral.
Debtor at its sole expense shall carry environmental risk insurance should any
of the collateral include Hazardous Materials. All insurers shall be reasonably
satisfactory to Banc One Leasing. Debtor shall deliver to Banc One Leasing
satisfactory evidence of such coverage. Proceeds of any insurance covering
damage or loss of the Collateral shall be payable to Banc One Leasing as loss
payee and shall, at Banc One Leasing's option, be applied toward (a) the
replacement, restoration or repair of the Collateral, or (b) payment of the
obligations of Debtor under the Obligations. Proceeds of any public liability or
property insurance shall be payable first to Banc One Leasing as additional
insured to the extent of its liability, then to Debtor. Debtor hereby appoints
Banc One Leasing as Debtor's attorney-in-fact with full power and authority in
the place of Debtor and in the name of Debtor or Banc One Leasing to make claim
for, receive payment of, and sign and endorse all documents, checks or drafts
for loss or damage under any such policy. Each insurance policy will require
that the insurer give Banc One Leasing at least 30 days prior written notice of
any cancellation of such policy and will require that Banc One Leasing's
interests be continued insured regardless of any act, error, omission, neglect
or misrepresentation of Debtor. The insurance maintained by Debtor shall be
primary without any right of contribution from insurance which may be maintained
by Banc One Leasing. If Debtor does not keep the Collateral insured as required
herein and/or fails to supply Banc One Leasing with evidence of that insurance,
Banc One Leasing shall have the right, in its sole discretion, to obtain
insurance in amounts sufficient to fully protect its interest, without notifying
Debtor. Debtor agrees that Banc One Leasing shall have the right, in its sole
discretion, to determine the manner in which Debtor shall reimburse Banc One
Leasing for the premium for such insurance, including but not limited to (a)
requiring Debtor to immediately reimburse Banc One Leasing for the premium and
other costs it incurs or (b) adding that amount directly to the principal
balance of any of the Obligations. Debtor will pay interest on any amount added
to the principal balance at the highest rate set forth in any of such
Obligation(s);
(e) Debtor will pay promptly when due all taxes, assessments and
governmental charges upon or against Debtor, the Collateral or the property or
operations of Debtor, in each case before same becomes delinquent and before
penalties accrue thereon, unless and to the extent that same are being contested
in good faith by appropriate proceedings. At its option, Banc One Leasing may
discharge taxes, liens or security interests or other encumbrances at any time
placed on the Collateral and may pay for maintenance and preservation of the
Collateral, all at Debtor's expense;
(f) Debtor agrees it will, at its sole expense: (a) repair and maintain the
Collateral in good condition and working order and supply and install all
replacement parts or other devices when required to so maintain the Collateral
or when required by applicable law or regulation, which parts or devices shall
automatically become part of the Collateral; (b) use and operate the Collateral
in a careful manner in the normal course of its business and only for the
purposes for which it was designed in accordance with the manufacturer's
warranty requirements, and comply with all laws and regulations relating to the
Collateral, and obtain all permits or licenses necessary to install, use or
operate the Collateral, and (c) make no alterations, additions, subtractions,
upgrades or improvements to the Collateral without Banc One Leasing's prior
written consent, but any such alterations, additions, upgrades or improvements
shall automatically become part of the Collateral. The Collateral will not be
used or located outside of the United States.
(g) Debtor will, in the event of appropriation or taking of all or any part
of the Collateral, give Banc One Leasing prompt written notice thereof. Banc One
Leasing shall be entitled to receive directly, and Debtor shall promptly pay
over to Banc One Leasing, any awards or other amounts payable with respect to
such condemnation, requisition or other taking and in its sole discretion may
apply the proceeds as it deems best without regard to whether an Event of
Default has or has not occurred;
(h) At least thirty (30) days prior to the occurrence of the event, Debtor
will deliver to Banc One Leasing written notice of any addition change in
Debtor's name, identity or legal structure;
Page 2 of 6
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(i) Debtor will defend the Collateral against all claims and demands of
all persons at any time claiming the same or an interest therein;
(j) Debtor will from time to time execute and deliver to Banc One Leasing
such lists, descriptions and designations of Collateral as Banc One Leasing may
require to identify the nature, extent and location of the Collateral;
(k) Debtor is in material compliance with all Federal, State and local
laws, statutes, ordinances, regulations, rulings and interpretations relating to
industrial hygiene, public health or safety, environmental conditions, the
protection of the environment, the release, discharge, emission or disposal to
air, water, land or ground water, the withdrawal or use of ground water or the
use, handling, disposal, treatment, storage or management of or exposure to
Hazardous Materials ("Hazardous Materials Laws"), the violation of which would
have a material effect on its business, its financial condition or the
Collateral. The term "Hazardous Materials" means any flammable materials,
explosives, radioactive materials, pollutants, toxic substances, hazardous
water, hazardous materials, hazardous substances, polychlorinated biphenyls,
asbestos, urea formaldehyde, petroleum (including its derivatives, by-products
or other hydrocarbons) or related materials or other controlled, prohibited or
regulated substances or materials, including, without limitation, any substances
defined or listed as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "pollutants" or "toxic substances"
under any Hazardous Materials Laws. Debtor has not received any written or oral
communication or notice from any judicial or governmental entity nor is it aware
of any investigation by any agency for any violation of any Hazardous Materials
Law;
(l) All representations, warranties, covenants and agreements set forth
herein and all information furnished by Debtor concerning the Collateral or
otherwise in connection with the Obligations, shall be at the time same is
furnished, accurate, correct and complete in all material respects as of the
date hereof, on the date upon which Debtor acquires any of the Collateral or any
rights therein not presently acquired or existing and shall continue until the
Obligations are paid in full.
5. Appointment of Attorney-in-Fact. Debtor hereby irrevocably appoints
Banc One Leasing or its designee as Debtor's attorney in fact, with full
authority in the place instead of Debtor, from time to time in Banc One
Leasing's discretion prior to, upon, during, and after an Event of Default, to
take any action and to execute any instrument which Banc One Leasing may deem
necessary or advisable to accomplish the purposes of this Agreement, including
without limitation, (a) to perfect and continue to perfect the security
interests created by this Agreement; (b) to ask, demand, collect or ▇▇▇ for,
recover, compound, receive and give acquittance in receipts for any monies due
or become due under or in respect for any Collateral; (c) to receive, endorse
and collect any drafts or other instruments, documents and chattel paper, in
connection with the Collateral; and (d) to file any claims or take any action or
institute any proceeding which Banc One Leasing may deem necessary or desirable
for the collection of any Collateral or otherwise to enforce the rights of Banc
One Leasing in the Collateral.
6. Events of Default. The following events shall be "Events of Default"
under this Agreement: (a) default by Debtor in performance of any covenant or
agreement herein; (b) any warranty, representation or statement made or
furnished to Banc One Leasing by or on behalf of Debtor in connection with this
Agreement or to induce Banc One Leasing to make a loan or extend other credit to
Debtor, proving to have been false in any material respect when made or
furnished; (c) default by Debtor or any other obligor in performance of any
covenant or agreement contained in any Obligation; (d) default by Debtor or any
other obligor in performance of any covenant or agreement contained in any
letter or agreement executed in conjunction with any Obligation; (e) death,
dissolution, termination of existence, insolvency, business failure, appointment
of a receiver of any part of the property of, assignment for the benefit of
creditors by or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Debtor or any guarantor or surety for Debtor; (f)
any uninsured loss, theft, damage or destruction of the Collateral; (g) the
making of any levy, seizure or attachment of any Collateral; (h) refusal to
surrender the Collateral as herein above provided; or (i) if Banc One Leasing
shall for any reason deem itself insecure as to the prospect of payment of any
Obligation.
7. Rights upon Default. If any Event of Default shall occur, then.
(a) Banc One Leasing may, at its option and without notice, declare the
unpaid balance of any or all of the Obligations immediately due and payable and
this Agreement and any or all of the Obligations in default;
(b) All payments received by Debtor under or in connection with any of the
Collateral shall be held by Debtor in trust for Banc One Leasing, shall be
segregated from other funds of Debtor and shall forthwith upon receipt by Debtor
be turned over to Banc One Leasing in the same form as received by Debtor (duly
endorsed by Debtor to Banc One Leasing, if required). Any and all such payments
so received by Banc One Leasing (whether from Debtor or otherwise) may, in the
sole discretion of Banc One Leasing, be held by Banc One Leasing, of then or at
any time thereafter be applied in whole or in part by Banc One Leasing against,
all or any part of the Obligations in such order as Banc One Leasing may elect;
Page 3 of 6
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(c) Banc One Leasing shall have the rights and remedies of a secured party
under this Agreement, under any other instrument or agreement securing,
evidencing or relating to the Obligations and under the UCC as adopted in the
state where Banc One Leasing's principal office is located or other applicable
laws. Without limiting the generality of the foregoing, Banc One Leasing shall
have the right to take possession of the Collateral in full or in part and for
that purpose Banc One Leasing may enter upon any premises on which the
Collateral may be situated and remove the Collateral therefrom;
(d) Without demand of performance or other demand, advertisement or notice
of any kind (except the notice(s) specified below regarding the time and place
of public sale or disposition or time after which a private sale or disposition
is to occur) to Debtor, any Obligor or any other person or entity (all and each
of which demands, advertisement and/or notices are hereby expressly waived),
Banc One Leasing may forthwith collect, receive, appropriate and realize upon
the Collateral, in full or in any part thereof, may abandon, not claim or not
take possession of any Collateral, and/or may forthwith sell, lease, assign,
give an option or options to purchase or sell or otherwise dispose of and
deliver the Collateral (or contract to do so), or any part thereof, in one or
more parcels at public or private sale(s) at any of Banc One Leasing's offices
or elsewhere at such price(s) as Banc One Leasing may determine, for cash or
credit or for future delivery without assumption of any credit risk. Banc One
Leasing shall have the right upon any public sale(s), and, to the extent
permitted by law, upon any such private sale(s), to purchase the whole or any
part of the Collateral so sold, free of any right or equity of redemption of
Debtor;
(e) Debtor, at Banc One Leasing's request, will assemble the Collateral
and make it available to Banc One Leasing at such place(s) as Banc One Leasing
may reasonably select, whether at Debtor's place(s) of business and/or the
Location of Collateral or elsewhere. Debtor further agrees to allow Banc One
Leasing to use or occupy Debtor's place(s) of business and/or Location of
Collateral, without charge, for the purpose of effecting Banc One Leasing's
remedies in respect to the Collateral;
(f) Banc One Leasing shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any or all of the Collateral or in any
way relating to the rights of Banc One Leasing hereunder, including attorney's
fees and legal expenses, to the payment in whole or part of the Obligations, in
such order as Banc One Leasing may elect, and only after or applying over such
net proceeds and after the payment by Banc One Leasing of any other amount
required by any provision of law, need Banc One Leasing account for the surplus,
if any, to Debtor;
(g) To the extent permitted by applicable law, Debtor waives all claims,
damages and demands against Banc One Leasing arising out of the repossession,
retention, sale or disposition of the Collateral;
(h) Debtor agrees that Banc One Leasing need not give more than ten (10)
calendar days' notice, addressed to Debtor at Debtor's mailing address set forth
above, of the time and place of any public sale or of the time after which a
private sale may take place and that such notice is reasonable notification of
such matters; and
(i) Debtor shall remain liable for any deficiency if the proceeds of any
sale or disposition of the Collateral are insufficient to pay all amounts to
which Banc One Leasing is entitled.
8. Processing of Collateral After an Event of Default. Debtor hereby
agrees that Banc One Leasing or its designee may do whatever Banc One Leasing
in its sole discretion deems to be commercially reasonable to prepare any
Collateral for disposition and to dispose of any Collateral, including without
limitation operating any of Debtor's manufacturing or other processes relating
to the Collateral and using patents, copyrights, trademarks, trade names, trade
secrets, rights under manufacturer's warranties, and the like relating to or
affecting such processes or the Collateral and disposition thereof, and that
Debtor shall not do anything which would restrict Banc One Leasing's right so
to act. Banc One Leasing may transfer Collateral into its name or that of a
nominee and receive the dividends, royalties or income thereof. Banc One
Leasing shall have no duty as to the collection or protection of the Collateral
or any income therefrom, nor as the preservation of rights against prior
parties, not as to the preservation of any right pertaining thereto.
9. Construction of Rights and Remedies and Waiver of Notice and Consent.
Unless otherwise expressly provided herein, (a) any right or remedy of Banc One
Leasing may be pursued without notice to or further consent of Debtor, both of
which Debtor hereby expressly waives; (b) each right or remedy is distinct from
but cumulative to each other right or remedy and may be exercised independently
or concurrently with, or successively to any other right and remedy; (c) no
extension(s) of time and/or modification(s) or amortization of any Obligation
shall release the liability of or bar the availability of any right or remedy
against Debtor, and Banc One Leasing shall not be required to commence
proceedings against Debtor or to extend time for payment or otherwise to modify
amortization of any Obligation, and (d) Banc One Leasing has the right to
proceed at its election against any or all of the Collateral, against all such
property together or against any items thereof from time to time, and not action
against any item(s) of property shall bar subsequent actions against any other
item(s) of property.
Page 4 of 6
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10. Extensions and Compromises. With respect to any Collateral or any
Obligation, Debtor assents to all extensions or postponements to the time of
payment thereof or any other indulgence in connection therewith, to each
substitution, exchange or release of Collateral, to the release of any party
primarily or secondarily liable, to the acceptance of partial payment thereof or
to the settlement or compromise thereof, all in such matter and such time or
times as Banc One Leasing may deem advisable. No forbearance in exercising any
right or remedy on any one or more occasions shall operate as a waiver thereof
on any future occasion; and no single or partial exercise of any right or remedy
shall preclude any other exercise thereof or the exercise of any other right or
remedy.
11. Indemnity and Expenses (a) Debtor agrees to indemnify Banc One Leasing
from any and all claims, losses and liabilities growing out of or resulting from
this Agreement; (b) Debtor will upon demand pay or reimburse Banc One Leasing,
as the case may be, the amount of any and all expenses, including fees and
disbursements of counsel, experts and agents, which Banc One Leasing may incur
in connection with, (i) the administration of this Agreement; (ii) the custody,
preservation, use or operation of, or the sale of, collections from, or other
realization upon my Collateral; (iii) the exercise or enforcement of any of the
nights of Banc One Leasing hereunder, or (iv) the failure by Debtor to perform
or observe any of the provisions hereof. Upon Debtor's failure to promptly pay
any said amount, Banc One Leasing may add said amount to the principal amount
owed on any Obligation and charge interest on the same at the rate of interest
as set forth in said Obligation; (c) Debtor shall fully and promptly pay,
perform, discharge, defend, indemnify and hold harmless Banc One Leasing from
any and all claims, orders, demands, causes of notion, proceedings, judgments,
or suits and all liabilities, losses, costs or expenses (including, without
limitation, technical consultant fees, court costs, expenses paid to third
parties and reasonable legal fees) and damages arising out of, or as a result of
(i) any release, discharge, deposit, dump, spill, leak or placement of any
Hazardous Material into or on any Collateral or property owned, leased rented or
used by Debtor (the "Property") at any time; (ii) any contamination of the soil
or ground water of the Property or damage to the environment and natural
resources of the Property or the result of actions whether arising under any
Hazardous Materials Law, or common law; or (iii) any toxic, explosive or
otherwise dangerous Hazardous Materials which have been buried beneath or
concealed with the Property. The indemnities set forth in this paragraph shall
survive termination of this Agreement and shall be effective for the full dollar
amount of any said cost, expense, etc., regardless of the actual dollar amount
of any Obligation(s).
12. Miscellaneous. (a) Any notice, statement, request, demand, consent, or
other document required to be given hereunder (any of which may be referred to
as "notice") by either party shall be in writing and shall be delivered
personally or by certified or registered mail, postage prepaid, return receipt
requested, to the last known address of said party. When personally delivered,
any notice shall be deemed given when actually received. Except as otherwise
provided herein, a notice shall be deemed given when mailed. Any mailed notice
given pursuant to this section shall be deemed reasonable and shall be
effective, regardless of whether actually received. (b) This Agreement shall be
construed and interpreted under the laws of the State of Ohio. (c) This
Agreement shall be binding upon Debtor, Debtor's personal representatives,
heirs, successors and assigns, as the case may be, and shall be binding upon the
inure to the benefit of Banc One Leasing and its successors and assigns. Debtor
cannot assign this Agreement. (d) The Agreement may be amended, but only by a
written amendment signed by Banc One Leasing and Debtor. (e) If any provisions
of this Agreement or the application of any provision to any party or
circumstance shall, to any extent, be adjudged invalid or unenforceable, the
application of the remainder of such provision to such party or circumstance,
the application of such provision to other parties or circumstances, and the
application of the remainder of this Agreement shall not be affected thereby.
(f) The headings contained in this Agreement have been inserted for convenience
of reference only and are not to be used to interpreting this Agreement. (g)
Where appropriate, the number of all words in this Agreement shall be both
singular and plural, and the gender of all pronouns shall be masculine,
feminine, neuter, or any combination thereof. (h) A carbon, photographic or
other reproduction of this Agreement or a financing statement shall be
sufficient as a financing statement and may be filed as such whenever necessary
or desirable, in Banc One Leasing's opinion, to perfect the security interest
granted by this Agreement. (i) Banc One Leasing may correct patent errors
herein, may fill in any blank spaces herein and may date this Agreement. (j) If
more than one signer executes this instrument, the word "Debtor" as used herein
shall be deemed to include all such signers, and all of the warranties,
representations, covenants and obligations hereof shall be joint and several of
and for all such signers. (k) This Agreement shall take effect when signed by
Debtor. (l) Time is of the essence of all requirements of Debtor hereunder.
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12
[BANK 1 ONE. LOGO]
ALL PARTIES TO THIS AGREEMENT, INCLUDING DEBTOR AND BANC ONE LEASING,
IRREVOCABLY CONSENT TO THE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT
IN FRANKLIN COUNTY, OHIO, AND WAIVE ALL RIGHTS TO TRIAL BY JURY, IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY
MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO
THIS AGREEMENT.
THE TRIZETTO GROUP, INC.
(Debtor)
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: Sr. VP, CFO
---------------------------
Witness:
-------------------------
Address:
-------------------------
-------------------------
Accepted and Agreed to:
BANC ONE LEASING CORPORATION
By:
------------------------------
Title:
---------------------------
Page 6 of 6
13
[BANK 1 ONE. LOGO]
EXHIBIT A
Description of Collateral
All of the property of THE TRIZETTO GROUP, INC. ("Debtor") described below, now
or at any time hereafter owned or acquired by Debtor, wherever located, whether
in possession of Debtor, warehousemen, bailees or any other person and whether
located on Debtor's premises or elsewhere and all replacements, substitutions,
attachments, accessions and additions to any such property of Debtor together
with all Proceeds (all of the foregoing referred to, collectively, as the
"Collateral"). "Proceeds" shall mean whatever is received or receivable when
any of the Collateral is (or proceeds thereof are) sold, leased, collected,
exchanged or otherwise disposed of, whether such disposition is voluntary or
involuntary, including, without limitation, (a) all cash and non-cash proceeds
and products of any of the foregoing, including all monies and deposit
accounts, and (b) all accounts, chattel paper, instruments, general intangibles
and rights to payment of every kind now or at any time hereafter arising out of
any such sale, lease, collection, exchange or other disposition of any of the
foregoing.
1. All equipment, tools, machinery, furnishings, furniture, and other goods
and fixtures (and all manufacturer's manuals and maintenance books and records
relating to any of the foregoing) and all improvements, replacements,
substitutions, attachments, accessions and additions thereto.
2. All accounts, general intangibles, chattel paper, instruments, and other
forms of obligations and receivables, and all books and records of Debtor
relating to any of the foregoing.
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[BANK 1 ONE. LOGO]
EXHIBIT B
Permitted Locations of Collateral
The Trizetto Group, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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[BANK 1 ONE. LOGO]
EXHIBIT C
Permitted Liens on Collateral
Bank One, Colorado, NA
Corporate Lending -- Boulder
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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